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Final Report - Draft, Undated (2)
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18558771
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Final Report - Draft, Undated (2)
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Charles E. Goodell Papers
Presidential Clemency Board Subject Files
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
Amnesty
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The original documents are located in Box 3, folder "Final Report - Draft, Undated (2)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 3 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
Chapter IV - B: Our Civilian Applicants
Our civilian applicants were predominantly white (87%), and came
from average American families. Twenty-nine per cent came from economi-
cally disadvantaged backgrounds. Over two-thirds (69%) were raised by
both natural parents, most had one to three brothers and sisters, and
evidence of severe family instability was rare. The proportion of
blacks (11%) and Spanish-speaking person (1.3%) was about the same as
found in the general population.
They grew up in cities (59%) and suburbs (19%) with disproportion-
ately many in the West and few in the South. Born largely between 1948
and 1950, they were part of the "baby boom" which was later to face the
draft during the Vietnam War. Over three-quarters (79%) had high school
degrees, and 18% finished college. A very small percentage (4%) had
felony convictions other than for draft offenses. In most ways, they
were not unlike most young men in cities and towns across the United States. *
Two things set them apart. First, 75% opposed the war in Vietnam
strongly enough to face punishment rather than fight there. Many were
Jehovah's Witnesses (2%) or members of other religious sects opposed to
war (6%). Second, they - unlike many of their friends and classmates -
were unable or unwilling to evade the draft by exemptions and defer-
ments or escape prosecution through dismissal and acquittal. They stayed
within the system and paid a penalty for their refusal to enter the military.
*Unless otherwise noted, all statistics about our applicants came from
our own survey of approximately 500 civilin applicants.
FORDS & OERALD LIORARY
2
In the discussion which follows, we trace the general experiences
of our civilian applicants. We look first at their experience with the
draft system. After examining the circumstances of their draft offenses,
we focus on their experience in the courts and prisons. Finally, we
describe the impact of their felony convictions.
Illustrating the discussion are excerpts from our case summaries.
The cases described cover a broad range of fact circumstances; ;many of
the applicants received outright pardons, some were assigned alternative
service, and a few were denied clemency. * Much of the information in
these summaries is based upon the applicants' own allegations, sometimes
without corroboration. In the spirit of the clemency program, we usually
accepted our applicant's claims at face value for the purposes of making
dispositions in their cases. Our perspective was more limited than that
of the local draft boards and the courts. Therefore, we urge the reader
not to draw sweeping conclusions from the facts in any individual case.
With few exceptions, our statistics are based upon our sample of
472 civilian applicants - roughly, one-fourth of our total number of
civilian applications. **
* See Chapters II-F and III for a discussion of how our Board applied
fact circumstances to determine individual case dispositions.
**See Appendix for a description of our sampling techniques and a
more detailed presentation of our findings.
3
Registration
Our applicants, like millions of young men, came into contact with
the Selective Service System when they reached the age of 18 -- usually
between 1966 and 1968. Often, it was their first direct contact with a
government agency. A few (3%) of our applicants committed draft offenses
by failing to register with the draft -- or failing to register on time.
Ignorance or forgetfulness was no defense, but draft boards rarely issued
complaints for failure to register unless an individual established a
pattern of evasion.
(Case #00085)
Applicant was convicted of failing to register for
the draft. As a defense, he stated that he was an
Italian immigrant who did not understand the English
language. However, there were numerous false state-
ments on his naturalization papers, and he was able
to comply with state licensing laws as he developed
several business enterprises in this country.
After registration, our applicants were required to keep their local
board informed of their current address. Failure to do so was a draft
offense, for which 10% of our applicants were convicted. These tended
to be itinerant individuals with little education, who by background were
unlikely to understand or pay due respect to their Selective Service
responsibilities.
(Case #00964)
Applicant's father, a chronic alcoholic, abused appli-
cant and his mother when intoxicated. Applicant left
his home to seek work, without success. Because of
his unsteady employment, he was compelled to live with
friends and was constantly changing addresses. His
parents were unable to contact him regarding pertinent
Selective Service materials. After his conviction for
failing to keep his draft board informed of his address,
applicant apologized for his "mental and emotional
confusion," acknowledging that his failure to communi-
cate with the local board was an "error of judgment on
my part."
4
The local board was under no obligation to find an individual's
current address, and it was our applicant's responsibility to make sure
that Selective Service mail reached him.
(Case #03151)
Applicant registered for the draft and subsequently
moved to a new address. He reported his change of
address to the local post office, but he did not
notify his local board. He mistakenly thought
this action fulfilled his obligation to keep his
local board informed of his current address.
(Case #00822)
Applicant's mother telephoned his new address to
the local board. Selective Service mail still
failed to reach him, and he was convicted for
failure to keep his board informed of his wherea-
bouts. The last address his mother had given was
correct, but the court did not accept his defense
that mail did not reach him because his name was
not on the mailbox.
Alternative Service for Conscientious Objectors
Approximately one-eighthof our civilian applicants did receive
CO exemptions. Rather than face induction into the military, they were
assigned to 24 months of alternative service in the national interest.
However, they refused to perform alternative service and were subsequently
convicted of that offense.
Some individuals had difficulty in performing alternative service
jobs because of the economic hardships they imposed.
(Case #10761)
Applicant was ordered to perform alternative service
work at a Soldier's Home for less than the minimum
wage. The Soldier's Home was fifty miles away from
his residence, and he had no car. Applicant claimed
that it was impossible to commute to the Soldier's
Home without a car, and that even if he could, he
would be unable to support his wife and child on
that salary. Not knowing what legal recourses were
available to him, he simply did not do the work,
although he was willing to perform alternative service.
Others decided that they could not continue to cooperate with the
Draft System because of their opposition to the war.
(Case #00560)
Applicant refused to perform alternative service as
a protest against the war in Vietnam.
However, most of our applicants assigned to alternative service who
refused to perform such work were Jehovah's Witnesses or members of other
pacifist religions. Their religious beliefs forbade them from coopera-
ting with the orders of any institution (like Selective Service) which
they considered to be part of the war effort. They were prepared to
accept an alternative service assignment ordered by a judge upon conviction
for refusing to perform alternative service.
(Case #02336)
Applicant, a Jehovah's Witness, refused to perform
alternative service ordered by the Selective Service
System, on the grounds that even this attenuated
participation in the war effort would violate his
6
religious beliefs. He did indicate that he would
be willing to perform similar services under the
court's order of probation. Rather than accept
this distinction, the judge sentenced the appli-
cant to prison for failure to perform alternative
service.
The Induction Order
Those who were not granted CO exemptions were reclassified 1-A after
their other classifications had expired. Their induction orders may
have been postponed by appeals or short-term hardship, but eventually
they -- like almost two million other young men during the Vietnam War
-- were ordered to report for induction. Only 4% of our applicants failed
to report for their pre-induction physical examination. It was not until
the date of induction, after complying with regulations to the fullest
extent, that 70% of our applicants violated the Selective Service lawy.
In fact, of those applicants who received orders to report for induction,
nearly half (32% of all applicants) actually appeared at the induction
center. When the time came to take the symbolic step forward, these
applicants refused to participate further in the induction process.
Once the induction order had been issued and all postponements had
been exhausted, our applicants had a continuing duty to report for
induction. It was often the practice of local boards to issue several
induction orders before filing a complaint with the United States Attorney,
giving our applicants every opportunity to comply.
(Case #00623)
Applicant was ordered to report for induction, but he
instead applied for CO status. His local board refused
to reopen his classification, and he was again ordered
to report for induction. He again failed to report,
advising his draft board after-the-fact that he had
been ill. He received a third order to report, but
again did not appear. Thereafter, he was convicted.
7
Sometimes, our applicants claimed that they never received induc-
tion orders until after Selective Service had issued complaints.
However, our applicants were legally responsible to make sure that mail
from their draft boards reached them.
(Case #00032)
While applicant was attending an out-of-state uni-
versity, his mother received some letters from his
draft board. Rather than forward them to him, she
returned them to the board. Her husband had
recently died, and she feared losing her son to the
service. Subsequently, applicant was charged with
a draft offense.
(Case #00853)
Having been classified 1-A, applicant informed his
draft board that he was moving out of town to hold
a job, giving them his new address. After reaching
his new address, he found that his job was not to
his liking. He then returned home, and he told his
draft board that he was back not long thereafter.
However, in the interim an induction order had been
sent to his new address, he had not appeared on his
induction date, and a complaint had been issued.
Sometimes, personal problems hindered our applicants from appearing
as ordered at an induction center.
(Case #00061)
Applicant failed to report to his pre-induction
physical because he was hospitalized as a result
of stab wounds. He was again ordered to report,
but he did not appear because he was in jail. He
was ordered to report for a third time, but applicant
claimed he failed to report because of his heroin
addiction. Therefore, he was convicted for his draft
offense.
Many of our applicants claimed that the realization that they were
conscientiously opposed to war came only after they received an induction
notice. This notice may have acted as the catalyst which led to a late
8
crystallization of an applicant's beliefs.
(Case #3099)
Applicant stated that "the induction order forced
me for the first time to make a decision as to
my views with regard to war."
However, a registrant could not request a change in status because of
"late crystallization" after his induction notice was mailed, unless he
experienced a change in circumstances beyond his control. In 1971, the
Supreme Court held in Ehlert V. U.S. (
) that a
post-induction-notice claim for consciencious objector status did not
constitute a change in circumstances beyond the applicant's control.
9
The Draft Offense:
To be eligible for clemency, our applicants must have committed at least
one of six offenses enumerated in the Executive Order. These offenses include
the failure to register (or register on time), failure to report changes in status
(primarily changes in address), failure to report for pre-induction physical
examination, failure to report for induction, failure to submit to induction,
and failure to perform alternative service employment. The Clemency Board
could not consider applications of those who had only been convicted of other
violations of the Selective Service Act, such as making false statements regarding
a draft classification; aiding and abetting another to refuse or evade registration
or requirements of the Selective Service Act; forging, destroying or mutilating
Selective Service documents such as draft cards or other official certificates;
or failing to carry a draft card or carrying a false draft card. However, the
vast majority of the Selective Service offenses committed during 1964 - 74 fell
within the eligibility requirements for the Clemency Program.
/
As described earlier, 3% failed to register, 10% failed to keep their local
boards informed of their address, 13% failed to perform alternative service as
conscientious objectors, 4% failed to report for pre-induction physical exams,
38% failed to report for induction, and 32% failed to submit to induction. At the
time of our typical applicant's draft violation, he was between the ages of 20 and
22, and the year was 1970 - 1972. For over 95% of these applicants, their failure
to comply with the Selective Service law was their first offense.
Numerous reasons were given by our applicants for their offenses. The most
frequent of their reasons was their conscientious objection to war in either
general or particular form. Fifty-seven percent expressed either religious, ethical
or moral objection to all war, and an additional 14% expressed specific objection
to the Vietnam War. When other related reasons were considered, (such as denial
of CO status), 75% of our civilian applicants claimed that they committed their
10
offenses for reasons related to their opposition to war. Likewise, expressions of
conscience were found by the Clemency Board to be valid mitigating circumstances
in 73% of our cases.
(Case #05677) Applicant had participated in anti-war demonstrations before
resisting induction. He stated that he could not fight a war
which he could not support. However, he does believe in the
need for national defense and would have served in the war if
there had been an attack on United States territory. He
stated that "I know that what is happening now is
wrong, so I have to take a stand and hope that it helps end
it a little sooner".
(Case #16975)
Applicant applied for conscientious objector status on the
ground that "inasmuch as he was a Black that he could not
serve in the Armed Forces of a nation whose laws and customs
did not afford him the same opportunities and protection
afforded to white citizens". His application was denied,
and he refused induction.
By contrast, less than one out of six of all our civilian applicants were
found by the Board to have committed their offenses for obviously manipulative
and selfish reasons.
Other major reasons for their offenses include medical problems (6%) and
family or personal problems (10%). In evaluating these reasons, we found that
these problems were mitigating in nearly all of the cases in which our applicants
raised them.
(Case #04069)
When applicant was ordered to report for induction, his
wife was undergoing numerous kidney operations, with a
terminal medical prognosis. She was dependent upon him
for support and care, so he failed to report for induction.
Experiences as a Fugitive:
At one time or another, our applicants faced the difficult decision whether
to submit to the legal process or become a fugitive. Nearly two-thirds of our
applicants immediately surrendered themselves to the authorities. Of the remaining
one-third who did not immediately surrender, the vast majority never left their
hometown. Of the 18% of our applicants who left their hometowns to evade the
/
the draft, slightly less then half (8%) ever left the United States. Most of our
at-large civilian applicants remained fugitives for less than one year. Many
reconsidered their initial decision to flee. About one-third surrendered, and
many of the rest were apprehended only because they lived openly at home and
made no efforts to avoid arrest. Over two-thirds of our at large applicants
were employed full-time; most others were employed part-time, and only one out
of ten was unemployed. Only a small percentage assumed false identities or took
steps to hide from authorities.
Most of our fugitive applicants who chose to go abroad went to Canada.
Geographical proximity was one reason why some of our applicants chose Canada,
and the similarity in culture, history, and language was another. However, the
major reason for the emigration of American draft resisters to Canada was the
openness of their immigration laws. Some of our applicants were either denied
immigrant status or deported by Canadian officials. Otherwise, they might have
remained there as fugitives.
(Case #04332) After receiving his order to report for induction, applicant
went to Canada. He was denied immigrant status, so he returned
to the United States and applied for a hardship deferment.
After a hearing, his deferment was denied. He was once again
ordered to report for induction, but he instead fled to the
British West Indies. He returned to Florida to make preparations
to remain in the West Indies permanently, but he was apprehended.
Most of our applicants who went to Canada (6%) stayed there briefly, but some
remained for years. A few severed all ties, with the apparent intention of
starting a new life there.
(Case #01285)
In response to Selective Service inquiries, applicant's
parents notified their local board that their son was in
Canada. However, they did not know his address. Applicant
lived and worked in Canada for almost four years.
The only applicants for our program who remained permanently in Canada were
those who fled after their conviction to escape punishment.
12
(Case #16975)
Applicant was convicted for refusing induction, but remained
free pending appeal. When his appeal failed, he fled to
Canada. He remained in Canada until he applied for clemency.
Experience with the Judicial Process
Pre-trial actions. Our applicant began to face court action when his local
draft board determined that sufficient evidence of a Selective Service violation
existed to warrant the forwarding of his file to the United States attorney.
After a complaint was filed and an indictment returned against our applicants,
both the courts and the Justice Department determined whether further prosecution
was warranted.
The courts dismissed many draft cases. Analysis of the number of cases and
the dismissal rate during the years 1968 - 1974, reveals a continuous increase
in both the number of cases and the dismissal rate (except for 1974). Through
1968, only about 25% of all cases resulted in dismissal. From 1969 through 1972,
about 55% were dismissed -- and in 1973, over two-thirds were dismissed.
/
One important element influencing the dismissal rate in particular juris-
dictions was the practice of forum shopping. Many defendants searched for
judges with a reputation for leniency or a tendency to dismiss draft cases. As
an example, the Northern District of California was known for its willingness
to dismiss draft indictments on minor technicalities. Since 1970, nearly 70%
of the cases tried in that court resulted in dismissal or acquittal.
/
At that time, many young men transferred their draft orders to the Oakland induction
center before refusing induction, thus enabling them to try their cases in the
Northern district. In 1970, its dismissal rate averaged 48.9 draft cases per
10,000 population compared to the national average of 14.1; the Central District of
California closely followed with 43.1. Some of our applicants apparently "forum
shopped" in California and other Western states; five percent received their
convictions in the Ninth Circuits, even though their homes were elsewhere.
13
Jurisdictional inequities in the dismissal rate for draft offenses within
the same state were common during the war era. For example, in contrast to the
dismissal rate in the Northern District of California (70%), the Eastern District
of California dismissed only 40% of its draft cases. Similarly, in the Eastern
District of Virginia 63% of the draft cases were dismissed, versus only 35% in
the Western District.
Convictions and Acquittals
After our applicants were indicted and their motions for dismissal refused,
26% pled not guilty, and they next entered the trial stage. The rest pled
either guilty (68%) or nolo contendere (6%). Many of those who pled guilty
had done so as part of a "plea bargain", whereby other charges against them
were dismissed.
Of the 21, 400 draft law violators who stood trial during the Vietnam era,
12, 700 were acquitted. Assuming that all those acquitted pled not guilty, and
assuming (by extrapolation) that 2300 (26%) of convicted draft offenders pled
not guilty, it appears that an individual stood an 85% chance of acquittal if
he pled not guilty. However, none of our applicants were among the 12,700
fortunate persons who were acquitted of draft charges.
Changing Supreme Court standards occurring after the offense but before
trial often led to these acquittals. Of special importance was the 1970 Welsh
case which broadened the conscientious objector exemption criteria to include
ethical and moral objection to war.
Some of our applicants may have been convicted because of the apparent
poor quality of their legal counsel.
(Case #03618) Applicant joined the National Guard and was released from the
extended active duty eight months later. While in the National
Guard reserves thereafter, he was referred to Selective Service
for induction for failure to perform his reserve duties satis-
factorily. He obeyed an order to report for induction, but
claimed that he negotiated an agreement to settle his National
Guard misunderstandings at the induction center. He pled not
guilty of refusing to submit to induction, and he was convicted.
14
Apparently, his trial attorney failed to call several important
defense witnesses who had been present at the induction center.
Applicant's present attorney believes that his trial attorney
represented him inadequately. After conviction but before
execution of his sentence, applicant completed his National
Guard service and received a discharge under honorable conditions.
Frequently, applicants were given the opportunity to enlist or submit to
induction during their trials, as a means of escaping conviction. Sometimes,
applicants claimed that they were caught in a "Catch 22" situation in which they
could neither be inducted nor escape conviction for failing to be inducted.
(Case #04322) Ordered to report for induction, applicant refused to appear at
the induction center. While charges were pending against him,
he was informed that he could seek an in-service CO classification
after entering the military. With this knowledge, he agreed to
submit to induction, and the court gave him a 30-day continuance.
He did seek induction, but ironically, he could not be inducted
because he failed to pass his physical due to a hernia condition.
When his continuance expired, he was convicted of failure to report
for induction.
However, others were convicted despite every possible attempt by authorities
to deal fairly and leniently with them.
(Case #00739) An order to report for induction was mailed to applicant's parents,
but he failed to report. Over one year later, applicant's
attorney contacted the United States Attorney and indicated that
applicant had severe psychiatric and other medical problems
which would make him fail his pre-induction physical. In response,
the United States Attorney offered applicant an opportunity to
apply for enlistment and be disqualified. However, applicant
could not be found, and a grand jury subsequently issued an
indictment.
Our typical applicant was convicted at the age of 23, nearly two years after
his initial offense. Less than one out of ten of our applicants appealed the
conviction.
An analysis of conviction rates for draft offenses shows clear jurisdictional
discrepancies. For instance, the Southern states had the highest propensity for
conviction, with the Eastern states and California having the lowest. In 1972,
there were 27 draft cases tried in Connecticut, with only one resulting in conviction.
15
In the Northern District of Alabama during the same period, 16 draft cases resulted
in 12 convictions. These different convictions rates apparently occurred because
of wide differences in attitude toward the draft violators. Regardless of the
explanation, it is clear that these differences in treatment encouraged wide scale
forum shopping by our applicants.
The conviction rate itself varied considerably during the war era. In 1968,
the conviction rate for violators of the Selective Service Act was 66%; by 1974,
the conviction rate was cut in half to 33%. Apparently, as time went by, prosecutors,
judges and juries had less inclination to convict draft-law violators.
16
IV-B-25
The Sentence
Only about one-third of our civilian applicants ever went to prison. The
remainder were sentenced to probation and, usually, alternative service.
A majority of our applicants -- 56% - performed alternative service.
Typically, they performed 24 or 36 months of alternative service, but
some completed as much as 60 months. The jobs they performed were similar
to those filled by conscientious objectors. However, they had to fulfill
other conditions of probation.
(Case #3384) As a condition of probation, applicant worked full-time
for good-will industries and a non-profit organization
which provided jobs for disabled veterans. He received
only a token salary.
(Case #1929)
Applicant worked for three years for & local emergency
housing committee as 8 condition of probation. Although
he worked full-time he did so as a volunteer.
A few (6%) failed to comply with the terms of their probation, often
by refusing to do alternative service work. Some fled and remained fugitives
until they applied for clemency.
(Case #14271) Convicted for a draft offense, applicant was sentenced to
three years probation, with the condition that he perform
civilian work in the national interest. About one year
later, his sentence was revoked for a parole violation
(absconding from supervision). He was again sentenced
to three years probation, doing alternative service work.
He did not seek such work and left town. A bench warrant
was issued for his arrest. Applicant, still a fugitive,
now resides in Canada.
Some were required, as a condition of probation, to enlist in military
service. They suffered a felony conviction, served full enlistments in the
military, and sometimes remained on probation after discharge. Curiously,
one percent of our civilian applicants became Vietnam veterans.
(Case #04035) Applicant refused induction because of his moral beliefs.
He was sentenced to three years imprisonment, suspended on
the condition that he enlist in the military. Applicant
26
17
did enlist, serving a full tour of duty. He served as a
noncombatant in Victnam, earning a Bronze Star. Awarded
an Nonorable Discharge, he still had one year of probation
to complete before his sentence was served.
Of our applicants sentenced to imprisonment, most served less than
one year. Only 13% of our applicants spent more than one year in prison,
and less than 1% were incarcerated for more than two years.
The sentencing provisions of the Military Selective Service Act of 1967
provided for jail terms ranging from zero to 5 years, giving judges almost
unlimited sentencing discretion. The sentencing dispositions of the courts
were inconsistent and widely varying, dependent to a great extent upon year
of conviction, geography, race, and religion. In 1968, 74% of all convicted
draft offenders were sentenced to prison, their average sentence was 37
months, and 13% received the maximum 5-year sentence. By 1974, only 22%
were sentenced to prison, their average sentence was just 15 months, and
no one received the maximum. Geographic variations were almost as striking:
In 1968, almost one-third of those convicted in the southern-states 5th
Circuit received the maximum 5-year prison sentence, contrasting with only
5% receiving the maximum in the eastern-states 2nd Circuit. During the
early years of draft offense trials in 1968, of 33 convicted Selective
Service violators in Oregon, 18 were put on probation, and only one was
given a sentence over 3 years. In Southern Texas, of 16 violators, none
were put on probation, 15 out of 16 received at least 3 years of 14 received
the maximum 5-year sentence. /
Other sentencing variations occurred on the basis of race. In 1972,
the average sentence for all incarcerated Selective Service violators was
27
18
34 months, while for blacks and other minorities the average sentence was
45 months. This disparity decreased to a difference of slightly more than
two months in 1974. While we did not perceive such a disparity as a general
rule, some cases appeared to involve racial questions.
(Case #01457) Applicant belongs to the Black Muslim faith, whose religious
principles prohibited him from submitting to induction. He
has been actively involved in civil rights and other social
movements in his region of the country. He was convicted
for his draft offense and sentenced to 5 years imprisonment.
Applicant stated that his case was iried with extreme pre..
judice. He spent 25 months in prison before being paroled.
Some religious inequities may also have occurred. For the years 1966
through 1969, incarcerated Jehovah's Witness received sentences averaging
about 1 month longer than the average Selective Service violator During
this same period, religious objectors other than Jehovah's Witnesses received
average sentences about 6 months shorter than the average violator.
Although 8. variety of sentencing procedures were available, the majority
of convicted Selective Service violators were sentenced under normal adult
procedures. If the offender were sentenced to jail, two types of sentence
were available: (1) a sentence of definite time during which he might be
paroled after serving 1/3 of his term; or (2) an indeterminate sentence during
which parole eligibility might be determined by a judge on the Board of Parcle
at a date before but not after 1/3 of the sentence had expired. Under the
Youth Correction Act, the convicted defendant might be unconditionally
discharged before the end of the period of probation or commitment. This
discharge automatically operated to set aside the conviction. Because
commitments and probations under the Youth Corrections Act were indeterminate,
the period of supervision might have lasted as long as six years. Bureau of
19
prison statistics indicate, however, that the Youth Corrections Act was
used as a sentencing procedure only in 10% of all violation cases. When it
was applied, the six year maximum period of supervision was imposed in almost
all cases.
Prison Experiences
One-third of our applicants received prison sentences and served time
in Federal prison. Most served their time well, often as model prisoners.
(Case (#10961)
Applicant served eighteen months in Federal prison.
His prison report indicated that he did good work as
a cook and had "a very good attitude." The report
noted no adjustment difficulties, no healthy problems,
and no complaints.
However, some of our applicants experienced greater difficulty in
adapting to prison life.
(Case #08067)
Applicant, a Hare Krishna, was sentenced to a two-year
prison term for a draft offense. Because of his religious
convictions and dietary limitations, life in prison
became intolerable for him. He escaped from Federal prison,
surrendering three years later.
Although very rare, isolated instances of harsh treatment were claimed
to have occurred.
(Case #1210)
Applicant was arrested in Arizona and extradited to the
Canal Zone for trial (the location of his local board).
Prior to trial, he was confined for four months in an
unairconditioned four by six foot cell in a hot jungle.
Some evidence exists that the applicant was denied the full
opportunity to post reasonable bail. At his trial the
applicant was convicted and sentenced to an additional two
months confinement. By the time of his release, the
applicant's mental and physical health substantially
deteriorated and he was confined in a mental hospital for
several months. The applicant is still a subject of great
concern.
Some could not escape the effects of their prison experience even after
their release.
(Case #0059)
Applicant became addicted to herion while serving the
prison sentence for his draft conviction. Unable to
legitimately support his habit after he was released,
he turned to criminal activities. He was later convicted
of robbery, and returned to prison.
The parole grant rates for Selective Service violators, like all other
prisoners, was determined categorically: it depended primarily the
not
on
individualized
aspects
of
their
or their imprisonment. It was the policy of many parole boards personal that draft history
violators serve a minimum of two years for parity with military duty, but
most Selective Service violators were released after their initial people
application. Jehovah's Witnesses received first releases in nearly all
instances. The majority of those serving prison sentences over one year
were released on parole whereas the great majority of those with prison
sentences less than one year served until their normal expiration date.
Most Selective Service violators were granted parole after serving approximately
half their prison sentences. This is higher than the national average for
all crimes, including rape and kidnapping. However, in each year from 1965
to 1974, Selective Service violators were granted parole more often than
other federal criminals.
Consequences of The Felony Conviction
A felony conviction had many grave reminfications for our applicants.
The overwhelming majority of states construe a draft offense as a felony,
denying our applicants the right to vote or, occasionally, just suspending
it during confinement. Some of the consequences of felony conviction are
less well known. In some states, for example, a felon lacks the capacity to
sue, although he or his representative may be sued he may be unable to
execute judically enforceable instruments or to serve as a court appointed
judiciary he may be prohibited from participation in the judicial process as
a witness or a juror A lesser known consequences of a felony conviction
might be that he may even lose certain domestic rights, such as his right to
exercise parental responsibility. For example, six states permit the adoption
of an ex- convict's children without his consent.
The principal disability arising from a felony conviction is usually its
effect upon employment opportunities. This effect is widespread among wide-
spread among employers. Often, this job discribination is discrimination is
reinforced by statue. States license close to 4,000 occupations, with close
to half requiring "good moral character" as a condition
IV-B-33
21
to receiving the license; therefore, convicted felons are often barred from
such occupations as accountant, architect, dry cleaner, and barber.
Case #1256)
Applicant, a third year law student; was told he could
not be admitted to the bar because of his draft conviction.
Even more severe restrictions exist in the public employment section.
Case #2448
Applicant graduated from college, but was unable to find
work comparable to his education because of his draft
conviction. He qualified for a job with the Post Office
but was than informed that his draft conviction rendered
him ineligible.
Case #1277
Applicant qualified for a teaching position, but the
local board of education refused to hire him on the basis
of his draft conviction. The Board later reversed its
position at the urging of applicant's attorney and the
local federal judge.
Despite this, our civilian applicants generally fared reasonable well
in the job market. Over three out of four applicants were employed either
full time (70%) cr part time (7%) when they applied for clemency.
Only 2% of our civilian applicants were unemployed at the time of their
application. The remainder of our applicants had returned to school (14%),
were presently incarcerated (2%), or were furloughed by prison officials
pending disposition of their cases by our Board (5%). Almost half (45%) had
married, and many (20%) had children on other dependents.
IV-B-1
Our Civilian Applicants
During the Vietnam Era, there were approximately 28,600,000
men of draft-eligible age. About forty percent -- 11,500,000 --
served in the Armed Forces either before or during the Vietnam
War.
The rest, 17,100,000 men, never served in the military. Of
those, 12,250,000 either never registered for the draft, built
deferment, on deferment, had high lottery numbers, or were other-
wise passed over by induction calls. Another 4,650,000 were given
other kinds of permanent draft exemption, usually because of mental
or physical deficiencies; 145,000 of these exemptions were for
GERALD R. FORD
conscientious objection to war.
The Selective Service System issued 209,000 complaints re--
garding individual draft offenses, usually for failure to report for
induction or a pre-induction physical exam. Almost 90% (173,700)
of the complaints never resulted in indictments. Some registrants
agreed to enter military service as soon as their complaint was
issued; others never had charges brought against them despite their
continued refusal to join the service. Apparently, no records
exist to show how many were in each of the two categories.
Only 25,300 Selective Service complaints resulted in grand
jury indictments. Of those indicted, 4,522 remained fugitives un-
til the start of the clemency program. The remaining 20,800 stood
trial.
Most (12,100) were acquitted; 8,700 were convicted. Only 4,900
ever went to jail. Thus, about 13,000 civilians either were
convicted of draft offenses or were still facing draft charges
when the President announced his clemency program. 4/ For every one
of them 12,000 others escaped military service by other means.
In the discussion which follows, we trace the general experi-
ences of our civilian applicants. With few exceptions, our statistics
are based upon our sample of 472 civilian applicants to our program.
Illustrating the discussion are excerpts of our own case summaries.
It should be kept in mind that much of the information in these
summaries are based upon the applicants' own allegations, sometimes
without corroboration. In sequence, we look at the following;
1. Background
2. Experience with Selective Service
A. Registration
B. Classification
C. Alternative Service for COs
D. The induction order
3. The draft offense
4. Experiences as a fugitive
5. Experience with the Judicial System
A. Dismissals
B. Convictions and Acquittals
C. Sentence
6. Prison Experience
7. Impact of felony conviction'
IV-B-3
Background
Our civilian applicants were predominantly white (87%), and
came from average American families. Only 29% came from economi-
cally disadvantaged families. Over two-thirds (69%) were raised by
both natural parents, most had one to three brothers and sisters,
and evidence of severe family instability was rare. The proportion
of Blacks (11%) and Spanish-speaking persons (1.3%) was about the
same as found in the general population.
They grew up in cities (59%) and suburbs (19%), with dis-
proportionately many in the West and few in the South. Born largely
between 1948 and 1950, they were part of the "baby boom" which was
later to face the draft during the Vietnam War. Over three-quarters
(79%) had high-school degrees, yet only 18% ever finished college.
Only a very small percentage (4%) ever had felony convictions other
than for draft offenses. In most ways, they were not unlike young
*
men in cities and towns across the United States.
Two things set them apart. First, over 80% opposed the war
in Vietnam strongly enough to face punishment rather than fight there.
Many were Jehovah's Witnesses (20%) or members of other religious
sects opposed to war (67%). Second, they -- unlike many of their
friends and classmates -- were unable or unwilling to evade the
* Unless otherwise noted, all statistics about our applicants came
from our own survey of approximately 500 civilian applicants.
IV-B-4
draft by exemptions and deferments or escape prosecution through
dismissal and acquittal. They were unique in that they chose
to stay within the system and pay a penalty for their conscien-
tions opposition to the war.
Registration
Our applicants, like millions of young men, came into contact
with the Selective Service System when they reached the age of
18 -- usually between 1966 and 1968. Often, it was their first
direct contact with a government agency. A few (3%) of our
applicants committed draft offenses by failing to register with the
draft --- or failing to register on time. Ignorance or forgetful-
ness was no defense, 'but draft boards rarely issued complaints for
failure to register unless an individual established a pattern of
evasion.
(Case #00085)
Applicant was convicted of failing to register
for the draft. As a defense, he stated that he
was an Italian immigrant who did not under-
stand the English language. However, there
were numerous false statements on his naturali-
zation papers, and he was able to comply with
state licensing laws as he developed several
business enterprises in this country.
After registration, our applicants were required to keep their
local board informed of their current address. Failure to do so
was a draft offense, for which 10% of our applicants were con-
victed. These tended to be itinerant individuals with little
education, who by background were unlikely to understand or pay
due respect to their Selective Service responsibilities.
IV-B-5
(Case # 00964)
Applicant's father, a chronic alcóholic,
abused applicant and his mother when intoxi-
cated. Applicant left his home to seek work,
without success. Because of his unsteady em-
ployment, he was compelled to live with friends
and was constantly changing addresses. His
parents were unable to contact him regarding per-
tinent Selective Service materials. After his
conviction for failing to keep his draft board
informed of his address, applicant apologized
for his "mental and emotional confusion,"
acknowledging that his failure to communicate
with the local board was an "error of judge-
ment on my part. =
The local board was under no obligation to find an individual's
current address, and it was his responsibility to make sure that
Selective Service mail reached him.
(Case # 03151)
Applicant registered for the draft and subse-
quently moved to a new address. He reported
his change of address to the local post office,
but he did not notify his local board. He
mistakenly thought this action fulfilled his
obligation to keep his local board informed of
his current address.
(Case #00822)
Applicant's mother telephoned his new address
to the local board. Selective Service mail still
failed to reach him, and he was convicted for
failure to keep his board informed of his where-
abouts. The last address his mother had given was
correct, but the court did not accept his defense
that mail did not reach him because his name was
not on the mailbox.
IV-B-6
Classification
Immediately after our applicants registered with the local board,
they were given Selective Service classifications. There were a number
of different kinds of deferments and exemptions for which our applicants
applied to their local boards. Many of the 44% of our applicants who attended
oollege received student deferments. Some applied for hardship deferments,
occupational deferments, physical or mental exemptions, or ministerial
exemptions (particularly the 21% of our applicants who were Jehovah's Witnesses).
The greatest number applied for
conscientious objector exemptions. Some
applied for numerous deferments and exemptions with draft boards showing
great patience in approving legitimate claims and offering full procedural
rights even for claims that were obviously dilatory.
(Case #04550)
Applicant had a student deferment from 1965 to 1969.
He lost his deferment in 1969, apparently because of his
slow progress in school (he did not graduate until 1973).
his two appeals to keep his student deferment were denied.
After passing his draft physical and having a third appeal
denied, he applied for a conscientious objector exemption.
This was denied, and his appeal was denied after a personal
appearance before his state's draft board director. After
losing another appeal to his local board, he was ordered to
report for induction. One day after his reporting date, he
applied for a hardship postponement because of his wife's
pregnancy. He was granted a nine-month postponement. He
then requested to perform civilian work in lieu of military
service, but to no avail. After his wife gave birth, he
fled to Canada with her and the child. He returned to the
United States a year later, and was arrested.
Many of our applicants hired attorneys to help them submit classification
requests and appeals. Others relied on the advice of local draft clerks, who
gave the best advice they could.
IV-B-7
(Case #02290)
Applicant made no attempt to seek a personal appearance
before the local board or appeal their decision, on the
basis of advice given by the clerk that the board routinely
denied such claims made by persons like himself.
Some applicants tried to interpret Selective Service forms without help
from either legal counsel or draft board clerks, at times preventing them
from filing legitimate claims.
(Case #00537)
Applicant initially failed to fill out a form to request
conscientious objector status because the religious
orientation of the form led him to believe he would not
qualify. After Welsh, he believed he might qualify under
the expanded "moral and ethical" criteria, so he requested
another form. When his local board sent him a form identical
to the first one, he again failed to complete it, believing
that he could not adequately express his beliefs on a form
designed for members of organized religious.
Others relied only on their personal knowledge of Selective Service rules,
without even making inquiry.
(Case #03548)
Applicant failed to apply for conscientious objector status
because he mistakenly believed that the Supreme Court had
ruled that a prerequisite for this classification was an
orthodox religious belief in a supreme being.
Some of our applicants' requests for deferments or exemptions were granted;
others were denied. In case of denial, an individual could appeal his local
board's decision to the state appeals board. A few of our applicants claimed
that local board procedures made appeals difficult.
(Case #00596)
Applicant claimed that he was given no reasons for the denial
of his claim for conscientious objector status. Consequently,
he said that he was unaware of how or where to appeal his
case to a higher level.
Others lost their appeal rights because of their failure to file appeal
papers within the time limits established by law.
IV-B-8
(Case #02317)
Applicant, a Jehovah's Witness, was unaware of the time
limitations on filing notices of appeal. He continued to
gather evidence for his appeal, but it was ultimately
denied on the procedural grounds of his failure to make
timely application for appeal.
If our applicant failed to appeal his local board's denial of his request
for reclassification, he might have been unable to raise a successful defense at
trial.
(Case #04296)
Applicant failed to appeal his local board's denial of his
conscientious objector claim, which he claimed was done
without giving any reasons for the denial. Although his
trial judge indicated that the local board's action was
improper, he nevertheless approved a conviction because
applicant had failed to exhaust his administrative remedies
by appealing his local board's decision.
Even if our applicant had been unsuccessful in his initial request for
reclassification -- whether or not he appealed his local board's decision
he could request a rehearing at any time prior to receiving his induction
notice. If a registrant could submit a prima facie case for reclassification,
his local board had to reopen his case. When this happened, he regained his
full appeal rights.
(Case #02317)
Applicant's local board decided to give him another hearing
after he accumulated additional evidence to support his
claim for reclassification. Despite this rehearing, his
local board found the evidence insufficient to merit a
reopening of his case. Without a formal reopening, applicant
could not appeal his board's findings upon rehearing.
Our applicants applied these procedural rights in their requests for all
types of deferments and exemptions. Some of their claims appeared to be
contorted efforts to avoid induction.
IV-B-9
(Case #01121)
Applicant claimed that his wife, who had been under psy-
chiatric care, began to suffer hallucinations when he
received his induction notice. He requested a hardship
deferment, with two psychiatrists claiming that he should
not be separated from his "borderline psychotic" wife. This
request was denied. Applicant later tried to get a physical
exemption by having braces fitted on his teeth. However, he
instead was convicted of conspiring to avoid induction.
( His dentist also faced charges, but fled to Mexico to
escape trial. He applied to our Board for clemency, but
we did not have jurisdiction over his case.)
(Case #01068)
Applicant instructed his draft board that he had a weak
back and weak knees. The physician who examined him refused
to verify this. Applicant then forged the physician's name
and returned the document to his draft board.
Other claims appeared to have more merit, but were nonetheless denied
by local boards.
(Case #10792)
Applicant's father was deceased, and his mother was disabled
and suffered from sickle cell anemia. His request for a
hardship deferment was denied. Also, applicant claimed that
he suffered from a back injury. This allegation was supported
by civilian doctors, but denied by military doctors.
(Case #11758)
Applicant's parents were divorced when he was 16, with his
father committed to a mental institution. Applicant dropped
out of school to support his mother. A psychiatrist found
applicant to suffer from claustrophobia, which would led to
severe depression or paranoid psychosis if he entered the
military. However, he did not receive a psychiatric exemption.
The classification of greatest concern to most of our civilian applicants
was the conscientious objector exemption. We have evidence that almost half
(44%) took some initiative to obtain a "CO" exemption, and the true proportion
may have been even higher. Twelve percent of our applicants were granted CO
status, 17% applied but were denied, and the remaining 15% never actually
completed a CO application.
IV-B-10
Of the roughly half of our applicants who took no initiative to obtain
CO status, many never thought of themselves as conscientious objectors. One-
quarter of our applicants committed their draft offense for reasons unrelated
to their opposition to war. Others did not consider filing for a CO exemption
because they were unaware of the availability of the exemption, knew that
current (pre-Welsh) CO criteria excluded them, or simply refused to cooperate
with the draft system.
(Case #10768)
Applicant, a Jehovah's Witness, had his claim for a ministerial
exemption denied. Since he made no claim for conscientious
objector status, he was classified 1-A and ordered to report
for induction. (He complied with his draft order, but he
later went AWOL and received an Undesirable Discharge.)
(Case #01213)
Applicant did not submit a CO application because it was his
understanding that current (pre-Welsh) CO rules required that
he be associated with a widely recognized pacifist religion.
His refusal to participate in war stemmed from his personal
beliefs and general religious feelings.
(Case #03506)
Applicant, a Jehovah's Witness, refused to file for CO status
because he felt that by so doing he would be compromising
his religious principles, since he would be required by his
draft board to perform alternative service work.
Usually, those who took some initiative but failed to follow through
with their CO application were pessimistic about their chances for success.
Some did not pursue a CO exemption because of their inability to qualify under
pre-Welsh rules. Occasionally, applicants claimed that their draft boards
discouraged them from applying.
(Case #00803)
Applicant filed a CO claim in 1969, after he received his
order to report for induction. His draft board postponed
his induction date and offered him a hearing. However, applicant
did not come to his hearing and advised his draft board that
he no longer desired CO status. He stated at trial that he
decided not to apply for a CO exemption because the law excluded
political, sociological, or philosophical views from the
"religious training and beliefs" necessary for CO status at
the time.
IV-B-11
(Case #00803)
In reply to applicant's request for a CO application form,
his local board included a note stating that a CO classification
was given only to members of pacifist-oriented religions.
Accordingly, he did not bother to return the form.
Some of our applicants failed to submit their CO applications on time,
because of inadvertence or lack of knowledge about filing requirements.
(Case #12828)
Applicant wished to apply for CO status, but his form was
submitted late and was not accepted by his local board. His
lawyer had lost his application form in the process of
redecorating his office.
(Case #00014)
Applicant applied for CO status after his student deferment
had expired. He did hospital work to support his beliefs,
but he failed to comply with time requirements for status
changes under the Selective Service Act. Consequently,
his local board refused to consider his CO application.
In the midst of the Vietnam War, the substantive law regarding conscientious
objectors changed dramatically, profoundly affecting the ability of a great number
of our applicants to submit C.O. claims with any reasonable chance of success.
In June 1970 the Supreme Court clarified conscientious objection in Welsh V.
United States, supra, stating that this exemption should be extended to cover
those whose conscientious objection stemmed from a secular belief. Section 6(j)
was held to exempt from military service those persons who consciences, spurred
by deeply held moral, ethical or religious beliefs, would give them no rest or
peace if they allowed themselves to become a part of an instrument or war.
In the later case of Clay V. U.S.
(
), the court stated the
three requirements for CO classification as: (1) It must be opposition to war in
any form; (2) the basis of opposition to war must be moral, ethical, or religious;
and (3) the beliefs must be sincere.
Why, then, did so few of our applicants apply for CO status? Twenty-three
percent of our applicants committed their offense primarily because of ethical
or moral opposition to all war -- and 33% committed their offense at least partly
IV-B-12
because of such ethical or moral feelings. However, only 11% took any
initiative to obtain a CO exemption, and 8% filed for CO status. Only 0.2%
were successful.
Ninety percent of our applicants registered prior to Welsh, so their
first information about the CO exemption was that it applied primarily, if not
exclusively, to members of pacifist religions. Many of our applicants passed
through the Selective Service System before the middle of 1970, when Welsh
was announced. Fifty-three percent of our applicants who applied for a CO
exemption did so before Welsh, and 35% committed their draft offense before
the decision. However, only 13% were actually convicted of their offense
before Welsh. Many of these individuals could have raised Welsh defenses at
trial, but twice that proportion (26%) pled guilty to their charges.
Two explanations are the most persuasive in explaining why more of our
applicants did not apply for (or qualify for) a CO exemption. A great many
apparently did not understand what Selective Service rules were or what
defenses could be raised at trial. Many others objected not to war in general,
but to the Vietnam War alone. These "specific war" objectors could not qualify
for a CO exemption even under the post-Welsh guidelines.
(Case #02320)
Applicant failed to submit a CO application after allegedly
being told by his local board that only members of certain
religious sects were eligible. This occurred after the Welsh
decision.
(Case #02338)
Applicant's claim for conscientious objector status was denied
by his local board because he objected only to the Vietnam
War, rather than all wars.
Another possible explanation may be the complexity of the CO application
form. The CO form asked about the philosophical nature of the applicant's
beliefs, their relationship to his religion, and their relationship to the
manner in which he conducted his life. Our better-educated applicants were
more likely than our less-educated applicants to have submitted CO applications;
IV-B-13
28% of those with college degrees applied for CO status, versus 19% of those
with less education. (However, it should be noted that our less-educated
applicants were successful in 53% of their CO claims, while those with college
degrees were successful in only 14% of their CO claims. This may be attributable
to the fact that those with less education more often based their claims on
religious, rather than moral or ethical, grounds.)
Finally, some of our applicants claimed that they were denied CO status
because their local boards applied pre-Welsh rules to their post-Welsh
CO claims. Of our civilian applicants who raised post-Welsh moral and éthical"
CO claims, only 10% were successful. By contrast, CO applicants who claimed
to be members of pacifist religions enjoyed a 56% success rate before and
after Welsh.
(Case #01373)
Applicant's request for conscientious objector status was
denied, partially on the basis that he had no particular
religious training or experience to establish opposition to
war. This determination was made after Welsh ruled that such
formal religious training was not a prerequisite to
conscientious objector status.
IV-B-14
Alternative Service for Conscientious Objectors
Approximately one-eighth of our civilian applicants did re-
ceive CO exemptions. Rather than face induction into the military,
they were assigned to 24 months of alternative service in the
national interest. However, they refused to perform alternative
service and were subsequently convicted of that offense.
Some individuals had difficulty in performing alternative
service jobs because of the economic hardships they imposed.
(Case #10761)
Applicant was ordered to perform alternative
service work at a Soldier's Home for less than
the minimum wage. The Soldier's Home was fifty
miles away from his residence, and he had no
car. Applicant claimed that it was impossible
to commute to the Soldier's Home without a car,
and that even if he could, he would be unable
to support his wife and child on that salary.
Not knowing what legal recourses were available
to him, he simply did not do the work, al-
though he was willing to perform alternative
service.
Others decided that they could not, on good conscience, con-
tinue to cooperate with the Selective Service System because of their
opposition to the war.
(Case #00560)
Applicant refused to perform alternative service
as a protest against the war in Vietnam.
However, most of our applicants assigned to alternative service
who refused to perform such work were Jehovah's Witnesses or members
of other pacifist religions. Their religious beliefs forbade them
from cooperating with the orders of any institution (like Selective
Service) which was part of the war effort. They were prepared to
accept an alternative service assignment ordered by a judge upon
IV-B-15
conviction for refusing to perform alternative service.
(Case #02336)
Applicant, a Jehovah's Witness, refused to
perform alternative service ordered by the
Selective Service System, on the grounds that
even this attenuated participation in the war
effort would violate his religious beliefs.
He did indicate that he would be willing to
perform similar services under the court's
order of probation. Rather than accept this
distinction, the judge sentenced the applicant
to prison for failure to perform alternative
service.
The Induction Order
Those who were not granted CO exemptions were reclassified 1-A
after their other classifications had expired. Their induction
orders may have been postponed by appeals or short-term hardship,
but eventually they - like almost two million other young men during
the Vietnam War -- were ordered to report for induction. Only 4%
of our applicants failed to report for their pre-induction physical
examination. It was not until the date of induction, after complying
with regulations to the fullest extent, that 70% of our applicants
violated the Selective Service law. In fact, of those applicants
who received orders to report for induction, nearly half (32% of all
applicants) actually appeared at the induction center. When the time
came to take the symbolic step forward, these applicants found that
their conscience would not allow them to participate further in the
induction process.
Once the induction order had been issued and all postponements
had been exhausted, our applicants had a continuing duty to report
IV-B-16
for induction. It was often the practice of local boards to
issue several induction orders before filing a complaint with
the United States Attotney.
(Case #00623)
Applicant was ordered to report for induction,
but he instead applied for CO status. His
local board refused to reopen his classification,
and he was again ordered to report for induction.
He again failed to report, advising his draft
board after-the-fact that he had been ill. He
received a third order to report, but again did
not appear. Thereafter, he was convicted.
Sometimes, our applicants claimed that they never received
induction orders until after Selective Service had issued complaints.
(Case #00032)
While applicant was attending an out-of-state
university, his mother received some letters
from his draft board. Rather than forware them
to him, se returned them to the board. Her hus-
band had recently died, and she feared losing
her son to the service, Subsequently, applicant
was charged with a draft offense.
(Case #00853)
Having been classified 1-A, applicant informed
his draft board that he was moving out of town
to hold a job, giving them his new address.
After reaching his new address, he found that his
job was not to his liking. He then returned
home, and he told his draft board that he was
back not long thereafter. However, in the interim
an- induction order had been sent to his new
address, he had not appeared on his induction
date, and a complaint had been issued.
Sometimes, personal problems hindered one of our applicants from
appearing as ordered at his induction center.
IV-B-17
(Case #00061)
Applicant failed to report to his pre-induction
physical because he was hospitalized as a re-
sult of stab wounds. He was again ordered
to report, but he did not appear because he
was in jail. He was ordered to report for a
third time, but applicant claimed he failed to
report because of his heroin addiction. There-
after, he was convicted for his draft offense.
For many of our applicants, the realization that they were
conscientiously opposed to war came only after they received an
induction notice. This notice often acted as the catalyst which
led to an introspective examination of the applicant's convictions,
and a crystallizationof his beliefs.
(Case #3099)
Applicant stated that "the induction order
forced me for the first time to make a decision
as to my views with regard to war."
However, a registrant coult not request a change in status because
of "late crystallization after his induction notice was mailed,
unless he experienced a change in circumstances beyond his control.
In 1971, the Supreme Court held in Ehlert V. U.S (
)
that a post-induction-notice claim for conscienceious objector
status did not constitute a change in circumstances beyond the
applicant's control. Those applicants were left to press their
claims in the military after induction.
Chapter IV - B: Our Civilian Applicants
Our civilian applicants were predominantly white (87%), and came
from average American families. Twenty-nine per cent came from economi-
cally disadvantaged backgrounds. Over two-thirds (69%) were raised by
both natural parents, most had one to three brothers and sisters, and
evidence of severe family instability was rare. The proportion of
blacks (11%) and Spanish-speaking person (1.3%) was about the same as
found in the general population.
They grew up in cities (59%) and suburbs (19%) with disproportion-
ately many in the West and few in the South. Born largely between 1948
and 1950, they were part of the "baby boom" which was later to face the
draft during the Vietnam War. Over three-quarters (79%) had high school
degrees, and 13% finished college. A very small percentage (4%) had
felony convictions other than for draft offenses. In most ways, they
were not unlike most young men in cities and towns across the United States.*
Two things set them apart. First, 75% opposed the war in Vietnam
strongly enough to face punishment rather than fight there. Many were
Jehovah's Witnesses (2%) or members of other religious sects opposed to
war (6%). Second, they - unlike many of their friends and classmates -
were unable or unwilling to evade the draft by exemptions and defer-
ments or escape prosecution through dismissal and acquittal. They stayed
within the system and paid a penalty for their refusal to enter the military.
*Unless otherwise noted, all statistics about our applicants came from
our own survey of approximately 500 civilin applicants.
&
FORD
ERALD
2
In the discussion which follows, we trace the general experiences
of our civilian applicants. We look first at their experience with the
draft system. After examining the circumstances of their draft offenses,
we focus on their experience in the courts and prisons. Finally, we
describe the impact of their felony convictions.
Illustrating the discussion are excerpts from our case summaries.
The cases described cover a broad range of fact circumstances;many of
the applicants received outright pardons, some were assigned alternative
service, and a few were denied clemency.* Much of the information in
these summaries is based upon the applicants' own allegations, sometimes
without corroboration. In the spirit of the clemency program, we usually
accepted our applicant claims at face value for the of
dispositions in their cases Our perspective was more limited than that such claims
although no there was at least purposes eircusstantial I corroboration of
of the local draft boards and the courts. Therefore, we urge the reader
not to draw sweeping conclusions from the facts in any individual case.
With few exceptions, our statistics are based upon our sample of
472 civilian applicants - roughly one-fourth of our total number of
civilian applications.
* See Chapters II-F and III for a discussion of how our Board applied
fact circumstances to determine individual case dispositions.
**See Appendix for a description of our sampling techniques and a
more detailed presentation of our findings.
3
Registration
Our applicants, like millions of young men, came into contact with
the Selective Service System when they reached the age of 18 -- usually
between 1966 and 1968. Often, it was their first direct contact with a
government agency. A few (3%) of our applicants committed draft offenses
by failing to register with the draft -- or failing to register on time.
Ignorance or forgetfulness was no defense, but draft boards rarely issued
complaints for failure to register unless an individual established a
pattern of evasion.
(Case #00085)
Applicant was convicted of failing to register for
the draft. As a defense, he stated that he was an
Italian immigrant who did not understand the English
language. However, there were numerous false state-
ments on his naturalization papers, and he was able
to comply with state licensing laws as he developed
several business enterprises in this country.
After registration, our applicants were required to keep their local
board informed of their current address. Failure to do so was a draft
offense, for which 10% of our applicants were convicted. These tended
to be itinerant individuals with little education, who by background were
unlikely to understand or pay due respect to their Selective Service
responsibilities.
(Case #00964)
Applicant's father, a chronic alcoholic, abused appli-
cant and his mother when intoxicated. Applicant left
his home to seek work, without success. Because of
his unsteady employment, he was compelled to live with
friends and was constantly changing addresses. His
parents were unable to contact him regarding pertinent
Selective Service materials. After his conviction for
failing to keep his draft board informed of his address,
applicant apologized for his "mental and emotional
confusion," acknowledging that his failure to communi-
cate with the local board was an "error of judgment on
my part."
4
The local board was under no obligation to find an individual's
current address, and it was our applicant's responsibility to make sure
that Selective Service mail reached him.
(Case #03151)
Applicant registered for the draft and subsequently
moved to a new address. He reported his change of
address to the local post office, but he did not
notify his local board. He mistakenly thought
this action fulfilled his obligation to keep his
local board informed of his current address.
(Case #00822)
Applicant's mother telephoned his new address to
the local board. Selective Service mail still
failed to reach him, and he was convicted for
failure to keep his board informed of his wherea-
bouts. The last address his mother had given was
correct, but the court did not accept his defense
that mail did not reach him because his name was
not on the mailbox.
Alternative Service for Conscientious Objectors
Approximately one-eighthof our civilian applicants did receive
CO exemptions. Rather than face induction into the military, they were
assigned to 24 months of alternative service in the national interest.
However, they refused to perform alternative service and were subsequently
convicted of that offense.
Some individuals had difficulty in performing alternative service
jobs because of the economic hardships they imposed.
(Case #10761)
Applicant was ordered to perform alternative service
work at a Soldier's Home for less than the minimum
wage. The Soldier's Home was fifty miles away from
his residence, and he had no car. Applicant claimed
that it was impossible to commute to the Soldier's
Home without a car, and that even if he could, he
would be unable to support his wife and child on
that salary. Not knowing what legal recourses were
available to him, he simply did not do the work,
although he was willing to perform alternative service.
Others decided that they could not continue to cooperate with the
Draft System because of their opposition to the war.
(Case #00560)
Applicant refused to perform alternative service as
a protest against the war in Vietnam.
However, most of our applicants assigned to alternative service who
refused to perform such work were Jehovah's Witnesses or members of other
pacifist religions. Their religious beliefs forbade them from coopera-
ting with the orders of any institution (like Selective Service) which
they considered to be part of the war effort. They were prepared to
accept an alternative service assignment ordered by a judge upon conviction
for refusing to perform alternative service.
(Case #02336)
Applicant, a Jehovah's Witness, refused to perform
alternative service ordered by the Selective Service
System, on the grounds that even this attenuated
participation in the war effort would violate his
6
religious beliefs. He did indicate that he would
be willing to perform similar services under the
court's order of probation. Rather than accept
this distinction, the judge sentenced the appli-
cant to prison for failure to perform alternative
service.
The Induction Order
Those who were not granted CO exemptions were reclassified 1-A after
their other classifications had expired. Their induction orders may
have been postponed by appeals or short-term hardship, but eventually
they -- like almost two million other young men during the Vietnam War
-- were ordered to report for induction. Only 4% of our applicants failed
to report for their pre-induction physical examination. It was not until
the date of induction, after complying with regulations to the fullest
extent, that 70% of our applicants violated the Selective Service lawy.
In fact, of those applicants who received orders to report for induction,
nearly half (32% of all applicants) actually appeared at the induction
center. When the time came to take the symbolic step forward, these
applicants refused to participate further in the induction process.
Once the induction order had been issued and all postponements had
been exhausted, our applicants had a continuing duty to report for
induction. It was often the practice of local boards to issue several
induction orders before filing a complaint with the United States Attorney,
giving our applicants every opportunity to comply.
(Case #00623)
Applicant was ordered to report for induction, but he
instead applied for CO status. His local board refused
to reopen his classification, and he was again ordered
to report for induction. He again failed to report,
advising his draft board after-the-fact that he had
been ill. He received a third order to report, but
again did not appear. Thereafter, he was convicted.
7
Sometimes, our applicants claimed that they never received induc-
tion orders until after Selective Service had issued complaints.
However, our applicants were legally responsible to make sure that mail
from their draft boards reached them.
(Case #00032)
While applicant was attending an out-of-state uni-
versity, his mother received some letters from his
draft board. Rather than forward them to him, she
returned them to the board. Her husband had
recently died, and she feared losing her son to the
service. Subsequently, applicant was charged with
a draft offense.
(Case #00853)
Having been classified 1-A, applicant informed his
draft board that he was moving out of town to hold
a job, giving them his new address. After reaching
his new address, he found that his job was not to
his liking. He then returned home, and he told his
draft board that he was back not long thereafter.
However, in the interim an induction order had been
sent to his new address, he had not appeared on his
induction date, and a complaint had been issued.
Sometimes, personal problems hindered our applicants from appearing
as ordered at an induction center.
(Case #00061)
Applicant failed to report to his pre-induction
physical because he was hospitalized as a result
of stab wounds. He was again ordered to report,
but he did not appear because he was in jail. He
was ordered to report for a third time, but applicant
claimed he failed to report because of his heroin
addiction. Therefore, he was convicted for his draft
offense.
Many of our applicants claimed that the realization that they were
conscientiously opposed to war came only after they received an induction
notice. This notice may have acted as the catalyst which led to a late
crystallization of an applicant's beliefs.
(Case #3099)
Applicant stated that "the induction order forced
me for the first time to make a decision as to
my views with regard to war."
However, a registrant could not request a change in status because of
"late crystallization" after his induction notice was mailed, unless he
experienced a change in circumstances beyond his control. In 1971, the
Supreme Court held in Ehlert V. U.S. (
) that a
post-induction-notice claim for consciencious objector status did not
constitute a change in circumstances beyond the applicant's control.
The Draft Offense:
To be eligible for clemency, our applicants must have committed at least
one of six offenses enumerated in the Executive Order. These offenses include
the failure to register (or register on time), failure to report changes in status
(primarily changes in address), failure to report for pre-induction physical
examination, failure to report for induction, failure to submit to induction,
and failure to perform alternative service employment. The Clemency Board
could not consider applications of those who had only been convicted of other
violations of the Selective Service Act, such as making false statements regarding
a draft classification; aiding and abetting another to refuse or evade registration
or requirements of the Selective Service Act; forging, destroying or mutilating
Selective Service documents such as draft cards or other official certificates;
or failing to carry a draft card or carrying a false draft card. However, the
vast majority of the Selective Service offenses committed during 1964 - 74 fell
within the eligibility requirements for the Clemency Program.
/
As described earlier, 3% failed to register, 10% failed to keep their local
boards informed of their address, 13% failed to perform alternative service as
conscientious objectors, 4% failed to report for pre-induction physical exams,
38% failed to report for induction, and 32% failed to submit to induction. At the
time of our typical applicant's draft violation, he was between the ages of 20 and
22, and the year was 1970 - 1972. For over 95% of these applicants, their failure
to comply with the Selective Service law was their first offense.
Numerous reasons were given by our applicants for their offenses. The most
frequent of their reasons was their conscientious objection to war in either
general or particular form. Fifty-seven percent expressed either religious, ethical
or moral objection to all war, and an additional 14% expressed specific objection
to the Vietnam War. When other related reasons were considered, (such as denial
of CO status), 75% of our civilian applicants claimed that they committed their
10
offenses for reasons related to their opposition to war. Likewise, expressions of
conscience were found by the Clemency Board to be valid mitigating circumstances
in 73% of our cases.
(Case #05677) Applicant had participated in anti-war demonstrations before
resisting induction. He stated that he could not fight a war
which he could not support. However, he does believe in the
need for national defense and would have served in the war if
there had been an attack on United States territory. He
stated that "I know that what is happening now is
wrong, so I have to take a stand and hope that it helps end
it a little sooner".
(Case #16975)
Applicant applied for conscientious objector status on the
ground that "inasmuch as he was a Black that he could not
serve in the Armed Forces of a nation whose laws and customs
did not afford him the same opportunities and protection
afforded to white citizens". His application was denied,
and he refused induction.
By contrast, less than one out of six of all our civilian applicants were
found by the Board to have committed their offenses for obviously manipulative
and selfish reasons.
Other major reasons for their offenses include medical problems (6%) and
family or personal problems (10%). In evaluating these reasons, we found that
these problems were mitigating in nearly all of the cases in which our applicants
raised them.
(Case #04069)
When applicant was ordered to report for induction, his
wife was undergoing numerous kidney operations, with a
terminal medical prognosis. She was dependent upon him
for support and care, so he failed to report for induction.
Experiences as a Fugitive:
At one time or another, our applicants faced the difficult decision whether
to submit to the legal process or become a fugitive. Nearly two-thirds of our
applicants immediately surrendered themselves to the authorities. Of the remaining
one-third who did not immediately surrender, the vast majority never left their
hometown. Of the 18% of our applicants who left their hometowns to evade the
/
the draft, slightly less then half (8%) ever left the United States. Most of our
at-large civilian applicants remained fugitives for less than one year. Many
reconsidered their initial decision to flee. About one-third surrendered, and
many of the rest were apprehended only because they lived openly at home and
made no efforts to avoid arrest. Over two-thirds of our at large applicants
were employed full-time; most others were employed part-time, and only one out
of ten was unemployed. Only a small percentage assumed false identities or took
steps to hide from authorities.
Most of our fugitive applicants who chose to go abroad went to Canada.
Geographical proximity was one reason why some of our applicants chose Canada,
and the similarity in culture, history, and language was another. However, the
major reason for the emigration of American draft resisters to Canada was the
openness of their immigration laws. Some of our applicants were either denied
immigrant status or deported by Canadian officials. Otherwise, they might have
remained there as fugitives.
(Case #04332)
After receiving his order to report for induction, applicant
went to Canada. He was denied immigrant status, so he returned
to the United States and applied for a hardship deferment.
After a hearing, his deferment was denied. He was once again
ordered to report for induction, but he instead fled to the
British West Indies. He returned to Florida to make preparations
to remain in the West Indies permanently, but he was apprehended.
Most of our applicants who went to Canada (6%) stayed there briefly, but some
remained for years. A few severed all ties, with the apparent intention of
starting a new life there.
(Case #01285)
In response to Selective Service inquiries, applicant's
parents notified their local board that their son was in
Canada. However, they did not know his address. Applicant
lived and worked in Canada for almost four years.
The only applicants for our program who remained permanently in Canada were
those who fled after their conviction to escape punishment.
12
(Case #16975) Applicant was convicted for refusing induction, but remained
free pending appeal. When his appeal failed, he fled to
Canada. He remained in Canada until he applied for clemency.
Experience with the Judicial Process
Pre-trial actions. Our applicant began to face court action when his local
draft board determined that sufficient evidence of a Selective Service violation
existed to warrant the forwarding of his file to the United States attorney.
After a complaint was filed and an indictment returned against our applicants,
both the courts and the Justice Department determined whether further prosecution
was warranted.
The courts dismissed many draft cases. Analysis of the number of cases and
the dismissal rate during the years 1968 - 1974, reveals a continuous increase
in both the number of cases and the dismissal rate (except for 1974). Through
1968, only about 25% of all cases resulted in dismissal. From 1969 through 1972,
about 55% were dismissed and in 1973, over two-thirds were dismissed.
/
One important element influencing the dismissal rate in particular juris-
dictions was the practice of forum shopping. Many defendants searched for
judges with a reputation for leniency or a tendency to dismiss draft cases. As
an example, the Northern District of California was known for its willingness
to dismiss draft indictments on minor technicalities. Since 1970, nearly 70%
of the cases tried in that court resulted in dismissal or acquittal.
/
At that time, many young men transferred their draft orders to the Oakland induction
center before refusing induction, thus enabling them to try their cases in the
Northern district. In 1970, its dismissal rate averaged 48.9 draft cases per
10,000 population compared to the national average of 14.1; the Central District of
California closely followed with 43.1. Some of our applicants apparently "forum
shopped" in California and other Western states; five percent received their
convictions in the Ninth Circuits, even though their homes were elsewhere.
13
Jurisdictional inequities in the dismissal rate for draft offenses within
the same state were common during the war era. For example, in contrast to the
dismissal rate in the Northern District of California (70%), the Eastern District
of California dismissed only 40% of its draft cases. Similarly, in the Eastern
District of Virginia 63% of the draft cases were dismissed, versus only 35% in
the Western District.
Convictions and Acquittals
After our applicants were indicted and their motions for dismissal refused,
26% pled not guilty, and they next entered the trial stage. The rest pled
either guilty (68%) or nolo contendere (6%). Many of those who pled guilty
had done so as part of a "plea bargain", whereby other charges against them
were dismissed.
Of the 21, 400 draft law violators who stood trial during the Vietnam era,
12, 700 were acquitted. Assuming that all those acquitted pled not guilty, and
assuming (by extrapolation) that 2300 (26%) of convicted draft offenders pled
not guilty, it appears that an individual stood an 85% chance of acquittal if
he pled not guilty. However, none of our applicants were among the 12,700
fortunate persons who were acquitted of draft charges.
Changing Supreme Court standards occurring after the offense but before
trial often led to these acquittals. Of special importance was the 1970 Welsh
case which broadened the conscientious objector exemption criteria to include
ethical and moral objection to war.
Some of our applicants may have been convicted because of the apparent
poor quality of their legal counsel.
(Case #03618) Applicant joined the National Guard and was released from the
extended active duty eight months later. While in the National
Guard reserves thereafter, he was referred to Selective Service
for induction for failure to perform his reserve duties satis-
factorily. He obeyed an order to report for induction, but
claimed that he negotiated an agreement to settle his National
Guard misunderstandings at the induction center. He pled not
guilty of refusing to submit to induction, and he was convicted.
14
Apparently, his trial attorney failed to call several important
defense witnesses who had been present at the induction center.
Applicant's present attorney believes that his trial attorney
represented him inadequately. After conviction but before
execution of his sentence, applicant completed his National
Guard service and received a discharge under honorable conditions.
Frequently, applicants were given the opportunity to enlist or submit to
induction during their trials, as a means of escaping conviction. Sometimes,
applicants claimed that they were caught in a "Catch 22" situation in which they
could neither be inducted nor escape conviction for failing to be inducted.
(Case #04322) Ordered to report for induction, applicant refused to appear at
the induction center. While charges were pending against him,
he was informed that he could seek an in-service CO classification
after entering the military. With this knowledge, he agreed to
submit to induction, and the court gave him a 30-day continuance.
He did seek induction, but ironically, he could not be inducted
because he failed to pass his physical due to a hernia condition.
When his continuance expired, he was convicted of failure to report
for induction.
However, others were convicted despite every possible attempt by authorities
to deal fairly and leniently with them.
(Case #00739) An order to report for induction was mailed to applicant's parents,
but he failed to report. Over one year later, applicant's
attorney contacted the United States Attorney and indicated that
applicant had severe psychiatric and other medical problems
which would make him fail his pre-induction physical. In response,
the United States Attorney offered applicant an opportunity to
apply for enlistment and be disqualified. However, applicant
could not be found, and a grand jury subsequently issued an
indictment.
Our typical applicant was convicted at the age of 23, nearly two years after
his initial offense. Less than one out of ten of our applicants appealed the
conviction.
An analysis of conviction rates for draft offenses shows clear jurisdictional
discrepancies. For instance, the Southern states had the highest propensity for
conviction, with the Eastern states and California having the lowest. In 1972,
there were 27 draft cases tried in Connecticut, with only one resulting in conviction.
15
In the Northern District of Alabama during the same period, 16 draft cases resulted
in 12 convictions. These different convictions rates apparently occurred because
of wide differences in attitude toward the draft violators. Regardless of the
explanation, it is clear that these differences in treatment encouraged wide scale
forum shopping by our applicants.
The conviction rate itself varied considerably during the war era. In 1968,
the conviction rate for violators of the Selective Service Act was 66%; by 1974,
the conviction rate was cut in half to 33%. Apparently, as time went by, prosecutors,
judges and juries had less inclination to convict draft-law violators.
IV-B-25
The Sentence
Only about one-third of our civilian applicants ever went to prison. The
remainder were sentenced to probation and, usually, alternative service.
A majority of our applicants 56% performed alternative service.
Typically, they performed 24 or 36 months of alternative service, but
some completed as much as 60 months. The jobs they performed were similar
to those filled by conscientious objectors. However, they had to fulfill
other conditions of probation.
(Case #3384) As a condition of probation; applicant worked full-time
for good-will industries and a non-profit organization
which provided jobs for disabled veterans. He received
only a token salary.
(Case #1929) Applicant worked for three years for & local emergency
housing committee as a condition of probation. Although
he worked full-time he did so as a volunteer.
A few (6%) failed to comply with the terms of their probation, often
by refusing to do alternative service work. "Some fled and remained fugitives
until they applied for clemency.
(Case #14271) Convicted for a draft offense, applicant was sentenced to
three years probation, with the condition that he perform
civilian work in the national interest. About one year
later, his sentence was revoked for a, parole violation
(absconding from supervision). He was again sentenced
to three years probation, doing alternative service work.
He did not seek such work and left town, A bench warrant
was issued for his arrest. Applicant, still a fugitive,
now resides in Canada.
Some were required, as a condition of probation, to enlist in military
service. They suffered a felony conviction, served full enlistments in the
military, and sometimes remained on probation after discharge. Curiously,
one percent of our civilian applicants became Vietnam veterans.
(Case #04085) Applicant refused induction because of his moral beliefs.
He was sentenced to three years imprisonment, suspended on
the condition that he enlist in the military. Applicant
26
17
did enlist, serving a full tour of duty. He served as a
noncombatant in Vietnam, earning a Bronze Star. Awarded
an Nonorable Discharge, he still had one year of probation
to complete before his sentence was served.
Of our applicants sentenced to imprisonment, most served less than
one year. Only 13% of our applicants spent more than one year in prison,
and less than 1% were incarcerated for more than two years.
The sentencing provisions of the Military Selective Service Act of 1967
provided for jail terms ranging from zero to 5 years, giving judges almost
unlimited sentencing discretion. The sentencing dispositions of the courts
were inconsistent and widely varying, dependent to a great extent upon year
of conviction, geography, race, and religion. In 1968, 74% of all convicted
draft offenders were sentenced to prison, their average sentence was 37
months, and 13% received the maximum 5-year sentence. By 1974, only 22%
were sentenced to prison, their average sentence was just 15 months, and
no one received the maximum. Geographic variations were almost as striking:
In 1968, almost one-third of those convicted in the southern-states 5th
Circuit received the maximum 5-year prison sentence, contrasting with only
5% receiving the maximum in the eastern-states 2nd Circuit. During the
early years of draft offense trials in 1968, of 33 convicted Selective
Service violators in Oregon 18 were put on probation, and only one was
given a sentence over 3 years. In Southern Texas, of 16 violators, none
were put on probation, 15 out of 16 received at least 3 years of 14 received
the maximum 5-year sentence. 21/
Other sentencing variations occurred on the basis of race. In 1972,
the average sentence for all incarcerated Selective Service violators was
27
18
34 months, while for blacks and other minorities the average sentence was
45 months. This disparity decreased to a difference of slightly more than
two months in 1974. While we did not perceive such a disparity as a general
rule, some cases appeared to involve racial questions.
(Case #01457) Applicant belongs to the Black Muslim faith, whose religious
principles prohibited him from submitting to induction. He
has been actively involved in civil rights and other social
movements in his region of the country. He was convicted
for his draft offense and sentenced to 5 years imprisonment.
Applicant stated that his case was tried with extreme pre-
judice. He spent 25 months in prison before being paroled.
Some religious inequities may also have occurred. For the years 1966
through 1969 incarcerated Jehovah's Witness received sentences averaging
about 1 month longer than the average Selective Service violator During
this same period, religious objectors other than Jehovah's Witnesses received
average sentences about 6 months shorter than the average violator.
Although a variety of sentencing procedures were available, the majority
of convicted Selective Service violators were sentenced under normal adult
procedures. If the offender were sentenced to jail, two types of sentence
were available: (1) a sentence of definite time during which he might be
paroled after serving 1/3 of his term; or (2) an indeterminate sentence during
which parole eligibility might be determined by a judge on the Board of Parcle
at a date before but not after 1/3 of the sentence had expired. Under the
Youth Correction Act, the convicted defendant might be unconditionally
discharged before the end of the period of probation or commitment. This
discharge automatically operated to set aside the conviction. Because
commitments and probations under the Youth Corrections Act were indeterminate,
the period of supervision might have lasted as long as six years. Bureau of
19
prison statistics indicate, however, that the Youth Corrections Act was
used as a sentencing procedure only in 10% of all violation cases. When it
was applied, the six year maximum period of supervision was imposed in almost
all cases.
Prison Experiences
One-third of our applicants received prison sentences and served time
in Federal prison. Most served their time well, often as model prisoners.
(Case (#10961)
Applicant served eighteen months in Federal prison.
His prison report indicated that he did good work as
a cook and had "a very good attitude." The report
noted no adjustment difficulties, no healthy problems,
and no complaints.
However, some of our applicants experienced greater difficulty in
adapting to prison life.
(Case #08067)
Applicant, a Hare Krishna, was sentenced to a two-year
prison term for a draft offense. Because of his religious
convictions and dietary limitations, life in prison
became intolerable for him. He escaped from Federal prison,
surrendering three years later.
Although very rare, isolated
instances of harsh treatment were claimed
to have occurred.
(Case #1210)
Applicant was arrested in Arizona and extradited to the
Canal Zone for trial (the location of his local board)
Prior to trial, he was confined for four months in an
unairconditioned four by six foot cell in a hot jungle.
Some evidence exists that the applicant was denied the full
opportunity to post reasonable bail. At his trial the
applicant was convicted and sentenced to an additional two
months confinement. By the time of his release, the
applicant's mental and physical health substantially
deteriorated and he was confined in a mental hospital for
several months. The applicant is still a subject of great
concern.
Some could not escape the effects of their prison experience even after
their release.
(Case #0059)
Applicant became addicted to herion while serving the
prison sentence for his draft conviction. Unable to
legitimately support his habit after he was released,
he turned to criminal activities. He was later convicted
of robbery, and returned to prison.
The parole grant rates for Selective Service violators, like all other
prisoners, was determined categorically: it depended primarily on the nature
on
individualized
aspects
of
their
or their imprisonment. It was the policy of many parole boards personal that draft history
violators serve a minimum of two years for parity with military duty, but
most Selective Service violators were released after their initial people
application. Jehovah's Witnesses received first releases in nearly all
instances. The majority of those serving prison sentences over one year
were released on parole, whereas the great majority of those with prison
sentences less than one year served until their normal expiration date.
Most Selective Service violators were granted parole after serving approximately
half their prison sentences. This is higher than the national average for
all crimes, including rape and kidnapping. However, in each year from 1965
to 1974, Selective Service violators were granted parole more often than
other federal criminals.
Consequences of The Felony Conviction
A felony conviction had many grave reminfications for our applicants.
The overwhelming majority of states construe a draft offense as a felony,
denying our applicants the right to vote or, occasionally, just suspending
it during confinement. Some of the consequences of felony conviction are
less well known. In some states, for example, a felon lacks the capacity to
sue, although he or his representative may be sued he may be unable to
execute judically enforceable instruments or to serve as a court appointed
judiciary he may be prohibited from participation in the judicial process as
a witness or a juror A lesser known consequences of a felony conviction
might be that he may even lose certain domestic rights, such as his right to
exercise parental responsibility. For example, six states permit the adoption
of an ex- convict's children without his consent.
The principal disability arising from a felony conviction is usually its
effect upon employment opportunities. This effect is widespread among wide-
spread among employers. Often, this job discripination is discrimination is
reinforced by statue. States license close to 4,000 occupations, with close
to half requiring "good moral character" as a condition
IV-B-33
21
to receiving the license; therefore, convicted felons are often barred from
such occupations as accountant, architect, dry cleaner, and barber.
Case #1256)
Applicant, a third year law student; was told he could
not be admitted to the bar because of his draft conviction.
Even more severe restrictions exist in the public employment section.
Case #2448
Applicant graduated from college, but was unable to find
work comparable to his education because of his draft
conviction. He qualified for a job with the Post Office
but was than informed that his draft conviction rendered
him incligible.
Case #1277
Applicant qualified for a teaching position, but the
local board of education refused to hire him on the basis
of his draft conviction. The Board later reversed its
position at the urging of applicant's attorney and the
local federal judge.
Despite this, our civilian applicants generally fared reasonable well
in the job market. Over three out of four applicants were employed either
full time (70%) or part time (7%) when they applied for clemency.
Only 2% of our civilien applicants were unemployed at the time of their
application. The remainder of our applicants had returned to school (14%),
were presently incarcerated (2%), or were furloughed by prison officials
pending disposition of their cases by our Board (5%). Almost half (45%) had
married, and many (20%) had children on other dependents.
Revised Draft
CHAPTER IV-C: Our Military Applicants
QCRALD R. FORD
Chapter IV-C: Our Military Applicants
Despite the popular belief that our applicants were war resisters, the vast
proportion of our military applicants were not articulate, well-educated opponents
of the war; almost none of them (0.27%) had applied for a conscientious objector
draft classification before entering the military. Less than 5% of our applicants
attributed their offenses to opposition to the War. Their average IQ was very
close to the national average. Nonetheless, over three-quarters dropped out of
high school before joining the service, while less than one-half of one per cent
graduated from college. They were raised in small towns or on farms (40%).
Generally, they came from disadvantaged environments. Many (60%) grew up in a
broken home struggling to cope with a low income (57%). A disproportionate per-
centage were black (21%) or Spanish-speaking (3.5%).
In the discussion which follows, we trace the general experiences
of our military applicants. We look first at the circumstances of their
induction or enlistment and their early experiences in the military. We
then describe how 27% of them served in Vietnam, many with distinction.
After considering the circumstances of their AWOL offenses, we look at
their experiences with the military justice system. Finally, we describe
the impact of their bad discharges.
Illustrating the discussion are excerpts from our case summaries.
The cases described cover a broad range of fact circumstances; many of
the applicants received outright pardons, some were assigned alternative
service, and a few were denied clemency. * Much of the information in
*See Chapters II-F and III for a discussion of how our Board applied
fact circumstances to determine individual case dispositions.
these summaries is based upon the applicants' own allegations, sometimes
without corroboration. In the spirit of the clemency program, we usually
accepted our applicants' claims at face value for the purposes of
making dispositions in their cases. Our perspective was more limited
than that of their commanding officers and court-martial judges. Therefore,
we urge the reader not to draw sweeping conclusions from the facts in
any individual case.
With few exceptions, our statistics are based upon our sample of
1009 military applicants - roughly 7% of our total number of military
applications.
Induction or Enlistment in the Military
Our applicants began their military careers at an early age. Almost
one-third enlisted at age 17, and over three-quarters were in uniform
by their 20th birthday. Most (84%) enlisted rather than be drafted.
Our applicants represented the Army (63%), the Marines (23%), and to a lesser
degree, the Navy (12%) and the Air Force (3%).
The reasons for enlistment varied from draft pressure to the desire
to learn a trade, to the simple absence of anything else to do. Others
saw the military as an opportunity to become more mature. **
See Appendix for a description of our sampling techniques and a more
detailed presentation of our findings.
Johnston, Jerome and Jerald Bachman, Youth in Transition Study, Young
Men Look at Military Service: A Preliminary Report, Vol V (Institute
for Social Research, University of Michigan, 1971), PP 60-61; Hearings
Before the Special Subcommittee on Recruiting and Retention of Military
Personnel of the Committee on Armed Services, House of Representatives,
92nd Congress, P. 8089; Harold, Wool, The Military Specialist, Skilled.
Manpower for the Armed Forces (Baltimore: The Johns Hopkins Press, 1968)
pp. 110-113, (Dr. Wool was an Assistant Secretary of Defense for Manpower.
Cortright, David, Soldiers in Revolt, (New York: Anchor Press/Deubliday,
1975) pp. 191-194
7
3.
(Case #00148)
Applicant enlisted after high school because
he did not want to go to college or be inducted
into the Army.
(Case #02483)
Applicant enlisted to obtain specialized training
to become a microwave technician.
(Case #00179)
Applicant enlisted at age 17 because he wanted a
place to eat and a roof over his head.
(Case #00664)
Applicant enlisted because he was getting into
trouble all the time and felt that service life
might settle him down.
As the Vietnam war expanded, America's military manpower needs in-
creased. Many recruiters were helpful to our applicants by arranging entry
into the preferred military occupational speciality and geographic area
of assignment. However, some of our applicants claimed, without corroboration
that their unauthorized absences were justified by the services' failure
to assign them to the positions they themselves wanted.
(Case #00356)
Applicant enlisted at age 17 for motor maintenance
training, but instead was trained as a cook. This
action caused him disappointment and frustration.
His grandmother contended that he was misled by
the recruiter.
Before the Vietnam War, the military generally had not accepted
persons for enlistment or induction if they had Category IV scores on
their AFQT * tests; some who scored between the 15th and 30th percentiles
were brought into the service under special projects. **
ion
pers DE by r-c
/ The Armed Forces Qualification Test (AFQT) was the basic test for
mental qualification for service in the military administered at the
Armed Forces Entrance and Examination Stations (AFEES).
Scores on the AFQT result in classifying personnel into five broad
mental groups:
Mental Group I
Percentile Score
I
93 -- 100
II
65 -- 92
III
31 -- 64
IV
10 -- 30
V
9 -- and below
See Harold Wool, supra, PP 66-68, also 50 App USCA 454a, 1968.
** See Harold Wool Former Deputy Secretary for Manpower and Reserve
Affairs, Supra at p. 180-184. One Project was the Special Training
Enlistment Plan (STEP) of 1964
In August, 1966, Secretary of Defense, Robert McNamara announced
Project 100,000 to use the training establishment of the Armed Forces to help
certain young men become more productive citizens when they return to civilian
life. Project 100,000 extended the opportunity and obligation of military
service to marginally qualified persons by reducing mental and medical stan-
dards governing eligibility. Persons scoring as low as the 10th percentile
became eligible for active service. During its first year, 40,000 soldiers
entered the military under this program. For two years, thereafter, it lived
up to its name by enabling 100,000 marginally qualified soldiers to join the
service each year.
Military studies have indicated that the opportunity for technical training
was the principal motivation for the enlistment of Category IV soldiers. However,
over half enlisted at leastpartly because of the draft pressure. Other reasons
for enlistment were to travel, obtain time to find out what to do with one's life,
serve one's country, and enjoy educational benefits after leaving the service.
/
Some did learn marketable skills: 13% of our applicants received a high school
equivalency certificate while in the service.
Almost one-third of our applicants (32%) were allowed to join the military
despite pre-enlistment AFQT scores at or below the 30th percentile.
(Case #00847) Applicant had an AFQT of 11 and a GT (IQ score) of 61 at
enlistment. He successfully completed basic training, but
went AWOL shortly thereafter.
(Case #0229)
Applicant had an 8th grade education, an AFQT of 11, and a GT of
62. From a broken home, he was enthusiastic about
his induction into the Army, believing that he would have
financial security and would receive technical training.
His lack of physical ability and difficulties in reading and
writing caused him to fail basic training. He was in Basic
Training for nine months before he was sent to AIT as a
tank driver. He continued to have learning problems in
advanced training. According to applicant, this problem
was compounded by the ridicule of his peers who discovered
that he required several months to complete basic training.
/ Paul Starr, James Henry, Raymond Bonner, The Discarded Army: Veterans After
Vietnam, (New York: Charterhouse 1973) pp. 188-193; Harold Wool, supra at 182;
Project One Hundred Thousand, haracteristics and Performance of "New Standards
Men", Office of Secretary of Defense, Assistant Secretary Defense for Manpower and
Reserve Affairs, December 1969
** Aaron katz& Milton R. Goldsamt, Assessment of Attitudes and Motivation of
Category IV Marginal Personnel: Demographic Characteristics, Attitudes and Personal
Ad justment During Recruit Training. Naval Research and Development Laboratory,
Wash., D.C. 1970. See also Harold Wool, Supra. PP 108-113:
4a
Not All of our Category IV applicants joined the service because of Project
100,000. Some had other test scores qualifying them for enlistment under the earlier
standards. Nonetheless, we suspect that many of our applicants would never have
been in the service were it not for Project 100,000.
Out Category IV applicants tended to be from disadvantaged circumstances. Com-
pared to our other applicants, they were predominantly Black or Spanish-speaking
(42% vs. 18%) * and grew up in cities (55% vs. 44%). Their families struggled with
low incomes (72% vs 49%), and they dropped out of high school (75% VS. 56%). The
quality of their military service was about the same as that of our other applicants;
they had no more punishments for non-AWOL offenses (53% VS. 52%) or non-AWOL charges
pending at time of discharge (13% vs. 12%). Despite this, a greater percentage re-
ceived administrative Undesirable Discharges (68% vs. 57%).
Of course, we saw only the Category IV soldiers who did not succeed in service.
The experiences of our 4,000+ Category IV applicants are not necessarily a fair re-
flection of the quarter-million men brought into the service by Project 100,000.
Many of our Category IV applicants served well before committing their qualifying
AWOL offenses.
(Case #5144)
Applicant, a Black male from a family of 12 children completed
11 years of school before his induction into the Army. His GT
was 114 and his AFQT was 18 (Category IV). Applicant spent 6
years on active duty, including service as a military policeman
in Korea. Following a three month stint in Germany, he served
an 8 month tour in Vietnam as an assistant platoon leader. On
a second tour in Victnam, where he served as a squad leader and
chief of an armored car section, he earned the Bronze Star for
heroism. He departed AWOL while on leave from his second tour
in Vietnam.
Early Experiences in the Military
Our applicant's first encounter with the military was in basic training. **
It was during these first weeks that our applicants had to learn the regimen and
routine of military life. For many, this was their first experience away from
home and the first time they faced such intense personal responsibilities.
The first figure is the percentage of the Category IV soldiers, and the second
refers to all other slodiers.
Since 63% of our applicants were Army, our discussion will center (unless other-
specified) on Army procedures, which differ in degree from other services,
Our Category IV applicants tended to be from disadvantaged circumstances.
Compared to our other applicants, they were predominatly Black or Spanish-
speaking (42% vs. 18%)* and grew up in cities (55% vs. 44%). Their families
struggled with low incomes (72% VS. 49%), and they dropped out of high school
(75% VS. 56%). The quality of their military service was about the same as that
of our other applicants; they had no more punishments for non-AWOL offenses
(53% VS. 52%) or non-AWOL charges pending at time of discharge (13% vs. 12%).
Despite this, a greater percentage received administrative Undesirable Discharges
(68% vs. 57%).
Of course, we saw only the Category IV soldiers who did not succeed
in service. The experiences of our 4,000 + Category IV applicants may
not be a fair reflection of the quarter-million men brought into the service
by Project 100,000. Many of our Category IV applicants served well before
commiting their AWOL offense.
(Case #5144) Applicant, a Black male from a family of 12 children completed
11 years of school before his induction into the Army. His GT
was 114 and his AFQT was 18 (Category IV). Applicant spent 6
years on active duty, including service as a military policeman
in Korea. Following a three month stint in Germany, he served
an 8 month tour in Vietnam as an assistant platoon leader. On
a second tour in Vietnam, where he served as a squad leader and
chief of an armored car section, he earned the Bronze Star for
heroism. He departed AWOL while on leave from his second tour
in Vietnam.
Early Experiences in the Military
Our applicant's first encounter with the military was in basic training.
It was during these first weeks that our applicants had to learn the regimen and
routine of military life. For many, this was their first experience away from
home and the first time they faced such intense personal responsibilities.
*
The first figure is the percentage of the Category IV soldiers, and the second
refers to all other slodiers.
**
Since 63% of our applicants were Army, our discussion will center (unless other-
wise specified) on Army procedures, which differ in degree from other services,
but not in substance.
Homesickness and emotional trauma found expression ranging from commonplace complaints
and tears to more unusual conduct. Their difficulties were no different from
those other young men have always faced upon entering the service. Some of our
applicants did not adjust well to the demands placed on them.
(Case
#02483) Applicant went on aimless wanderings prior to advanced training.
He finally lost control of himself and knocked out 20 windows in
the barracks with his bare hands, resulting in numerous wounds
to himself.
Social and cultural differences among recruits posed problems for hers who
did not get along well in the close quarters of the barracks environment.
(Case #0309)
During boot camp, applicant, of Spanish heritage, was subjected
to physical and verbal abuse. He recalls being called "chili
bean" and "Mexican chili". His ineptness also made him the
butt of his boot camp unit. He wept at his trial when he recalled
his early experiences that led to his AWOL.
(Case #10125)
Applicant's version of his various problems is that he could no
longer get along in the Marine Corps. Other Marines picked on
him because he was Puerto Rican, and wouldn't permit him to
speak Spanish to other Puerto Ricans, and finally they tried
to get him into trouble when he refused to let them "push"
him around.
(Case #11704)
Applicant was a high school graduate with a Category I AFQT score
and GT (IQ test) score of 145. She complained that other soldiers
harrassed her without cause and accused her of homosexuality.
She departed AWOL to avoid the pressure.
Incidents of AWOL during basic training usually resulted in minor forms of punishment.
Typically, a new recruit would receive a non-judical punishment resulting in
restriction, loss of pay, or extra duty. Seven percent of our applicants were
discharged because of an AWOL commencing during basic training. Following basic
training, they transferred to another unit for advanced or on-the-job training.
Altogether, 10% of our applicants were discharged for an AWOL begun during advanced
training. Individual transfers resulted in breaking up units and frequently
intense personal friendships. The AWOL rate tended to be higher for soldiers "in
transit" to new assignments.
k/ M.L. McCubbin
,
Leadership and Situational Factors Related to AWOL: A
Research Report, Ft. Riley, Kansas: U.S. Army Correctional Training Facility, 1971;
T.S. Hartnagel, "Absence Without Leave: A Study of the Military Offender Journal
of Political and Military Sociology, Vol. 2 pp. 205-220, 1974; see also The Prediction
of AWOL, Military Skills and Leadership Potential, Human Resource Research Organization,
Technical Report 73-1, 1973
7.
Some of our applicants were trained in jobs which they found unsatisfying,
and others were given details which made no use of their newly-earned skill.
Some of our applicants thought the service owed them an obligation to meet their
preferences. When the military used them in other necessary functions, they
went AWOL.
(Case #0649)
Applicant enlisted in the Army for a term of three years, specifying
a job preference for electronics. The recruiter informed him
that the electronics field was full, but that if he accepted
assignment to the medical corps he could change his job after
entry onto active duty. Once on active duty, applicant was informed
that his MOS could not be changed. He claimed that he was
unsuccessful in obtaining the help of his platoon sergeant,
company commander, and chaplain, so he left AWOL.
Military life, especially for those of low rank, required the performance of
temporary duties for which no training was required, such as kitchen patrol and
area cleanups. Some of our applicants spurned these responsibilities and went
AWOL.
(Case #9488)
Applicant found himself pulling details and mowing grass rather
than working in his military occupational speciality. He then
went home and did not return for over three years.
After several months in military life, others were still having difficulty
adjusting to the many demands of military life. A majority (52%) of our, applicants
were discharged for AWOL offenses occurring during stateside duty other than
during training. As in civilian employment, a daily routine had to be followed,
superiors had to be treated with respect, and orders had to be obeyed. The civilian's
or service-member's failure to comply with these expectations could result in his
being fired, with attendant loss of pay, promotion and status, or transfer. But
the serviceman also violated military custom or law which could lead to disciplinary
action. Altogether, over half (53%) of our applicants were punished for one or more
military offenses in addition to AWOL which would not have been criminal offenses in
civilian life. Only 3% were also punished for military offenses comparable to
civilian crimes (such as theft or vandalism).
8.
(Case #14392)
Applicant had difficulty adjusting to the regimentation of Army
life. While he was in the service, he felt that he needed to
have freedom of action at all times. He would not take guidance
from anyone, was repeatedly disrespectful, and disobeyed numerous
orders. His course of conduct resulted in his receiving three
non-judicial punishments and three Special Court-Martials.
Requests for Leave, Reasignment, or Discharge
Most of our applicants complained of personal or family
problems during their military careers. Parents died, wives
had miscarriages, children had illnesses, houses were re-
possessed, families went on welfare, and engagements were broken.
(Case #3289)
During his 4 months and 19 days of creditable
service, applicant was absent without official
leave on five occasions. He was motivated
in each instance by his concern for his
grandmother who was now living alone and whom
he believed needed his care and support.
The military had remedies for soldiers with these problems.
They could request leave, reassignment (compassionate, or
normal change of duty station), and, in extreme cases, dis-
charge due to a hardship. Unit officers, chaplains, attorneys
of the Judge Advocate General's Corps, and Red Cross workers were
9.
there to render assistance within their means. Despite the
help they received, some applicants did not come back when their
personal problems were resolved.
(Case #9491)
Applicant requested, and was granted, an
emergency leave due to his mothers death.
Applicant did not return from leave. He
was apprehended one year and 8 months later.
The Department of Defense discovered that 58% of its
clemency applicants did seek help from at least one military
source before going AWOL. However, only 45% approached their
commanding officer, and fewer yet approached an officer above
the company level. Many of our applicants never tried to solve
their problems through military channels. Other applicants in-
dicated that they tried some of these channels but failed to
obtain the desired relief. They then took matters into their
own hands.
(Case #1244)
Applicant's wife was pregnant, in financial
difficulties and being evicted; she suffered
from an emotional disorder and nervous prob-
lems; his oldest child was asthmatic and an
epileptic, having seizures that sometimes re-
sulted in unconsciousness. Applicant re-
quested transfer and a hardship discharge which
were denied.
Request for leave were matters within the Commanding Officer's
discretion. However, leave is earned at the rate of 30 days per
calendar year, and individuals often used leave substantially
in excess of the amount they had earned. Commanding Officers
/P.B. Bell & T.J. Houston, The Vietnam Era Deserter; Characteristics of Un-
convicted Army Deserters Participating in the Presidential Clemency Program, U.S.
Army Research Institute for the Behavioral and Social Sciences, PP. 27-29, 1975.
/
D.
could not normally authorize "advance leave" in excess of 30
days, so a soldier who had used up his advance leave would have to
go AWOL to solve his problems. This was especially true if the
enormity of the problem made one period of leave insufficient
for the applicant's purpose, resulting in their going AWOL.
(Case #01336)
While applicant was home on leave to get
married, a hurricane flooded his mother-
in-law's house, in which he and his newly
wed wife were staying. Almost the entire
property and his belongings were lost. He
requested and was granted a 21-day leave
extension, which he spent trying to repair the
house However, the house remained in an un-
liveable condition, and his wife began to
suffer from a serious nervous condition.
Applicant went AWOL for four days to ease
the situation. He returned voluntarily and
requested a Hardship Discharge or a six-month
emergency leave, both of which were denied.
He then went AWOL.
Of our applicants who requested leave or reassignment,
roughly 15% had their request approved. A total of 1.3% of
our applicants were granted leave or reassignment to help them
solve the problem which led to their AWOL. By contrast, 8.6%
had their leave or reassignment requests turned down. These
requests were evaluated on the basis of first-hand information
available to commanding officers, who had to weigh the soldier's
personal needs against the needs of the military.
The Hardship Discharge offered a more lasting solution to
the conflict between a soldier's problem and his military obli-
gations, without the stigma of most other administrative
separations. To get a Hardship Discharge, he had to submit
a request in writing to his commanding officer, explaining
the nature of his problem and how a discharge would help him
solve it. The Red Cross was often asked for assistance in
documenting the request. Higher headquarters was required to
review the request and had the power to make final decisions,
as required by service regulations. Our applicants often did
not have the patience to proceed throu h proper channels.
(Case #0269)
Applicant states that his father, who had
suffered for three years from cancer,
committed suicide by hanging. His family's
resources and morale had been severely
strained by the father's illness and death.
Applicant spent a period of time on emer-
gency leave to take care of funeral arrange-
ments and other matters. At the time, his
mother was paralyzed in one arm and unable
to work. Applicant sought a hardship dis-
charge, but after three weeks of waiting,
his inquiries into the status of the appli-
cation revealed that the paperwork had been
lost. Applicant then departed AWOL.
The soldier who was conscientiously opposed to war could
apply for in-service conscientious objector status. Very few
of our applicants did: Only 1.1% took any initiative to ob-
tain this in-service status, and only 0.5% made a formal appli-
cation. However, our Board found 4.6% of our applicants to
have committed their offenses for conscientious reasons. Some
of our applicants alleged that they were unaware of what they
had to do to get such status, probably as a result of their
misinterpretations of the rules.
1 2
(Case #8129)
From the time of his arrival at his Navy Base, applicant
consulted with medical, legal, and other officers on how
to obtain a discharge for conscientious objection. He
was told that the initiative for such a discharge would
have to be taken by the Navy, so he would have to
demonstrate that he was a conscientious objector. He
then went AWOL to prove his beliefs. Following his
conviction for that brief AWOL, he requested a discharge
as a conscientious objector. His request was denied.
There are two types of conscientious objector applications. One
resulted in reassignment to a non-combatant activity, while the other
provided for a discharge under honorable conditions. Each type involved
separate but similar procedures. Understandably, procedures put the
burden of proof on the applicant. He was required to submit statements
on six separate questions concerning the origin, nature, and implications
of his conscientious objection. The applicant had to "conspicuously
demonstrate the consistency and depth of his beliefs. " / Some of our
applicants did not persuade authorities of their CO beliefs.
(Case #10402) For a year-and-a-half after he was drafted, applicant tried
to obtain conscientious objector status, because he did not
believe in killing human beings. He is minimally articulate,
but stated that even if someone was trying to kill him, he
could not kill in return. He talked to his Captain and the
Red Cross, neither of whom found his aversion to taking human
life to be persuasive. When his application was denied and
he was scheduled for Vietnam, he went AWOL.
After submitting his application, the soldier was interviewed by a
chaplain and a military psychiatrist. The Chaplain had to comment on the
sincerity and depth of the applicant's belief, and the psychiatrist evaluated
him for mental disorders. Some claimed they were victims of irregularities
and they went AWOL rather than seeking remedies within channels.
* /Department of Defense Directive 1300.6 (20 August, 1971).
/
3
(Case #0472)
Three years after enlisting in the Navy, applicant made
several attempts to be recognized as a conscientious objector.
He spoke with chaplains, legal officers, doctors, and a
psychiatrist. He told the psychiatrist of his opposition
to the war in Vietnam and of his heavy drug use. Applicant
claimed that the psychiatrist threw his records in his face
and told him to get out of his office. He went AWOL after
his experience with the psychiatrist.
The conscientious objector's next step was to present his case before
a hearing officer, who in turn made a recommendation through the chain of
command on his request. The final authority rested either with the general
Court-Martial convening authority or with the administrative affairs office
in the appropriate Service Department Headquarters.
14
Assignment to Vietnam
During the height of the Vietnam War, our applicants
were ordered to Vietnam about six months after entering the
service. Just over half (51%) of our applicants volunteered
or received orders for Vietnam. Most complied with the orders,
but many did not. Twenty-four percent of our applicants were
discharged because they went AWOL when assigned to Vietnam.
(Case # 03584)
Applicant received orders to report
to Vietnam. While on leave before he
had to report, he 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 he went AWOL.
The other 27% did go to Vietnam. Once there, our appli-
cants were less likely to desert. Roughly one in eight (3.4%
of our applicants) went on extended AWOL while in Vietnam, and
one-third of those went AWOL from non-combat situations. In
many cases, their reasons related to personal problems, often
of a medical nature.
(Case #00423)
Applicant was assigned to an infantry
unit in Vietnam. During his combat
service, he sustained an injury which
caused his vision to blur in one eye.
His vision steadily worsened, and he
was referred to an evacuation hospital
in DaNang for testing. A doctor's
assistant told him that the eye doctor
15
(#00423) cont'd
was fully booked and that he would
have to report back to his unit and
come back to the hospital in a
couple of weeks. Frustrated by this
rejection and fearful of his inability
to function in an infantry unit, appli-
cant went AWOL.
Many of our applicants who were sent to Vietnam were
assigned to combat units. Some (1.2%) actually deserted while
serving in a combat assignment.
(Case #3304)
Applicant would not go into the field
with his unit because he felt the new
C.O. of his company was incompetent.
He was getting nervous about going out
on an operation in which the proba-
bility of enemy contact was high. (His
company was subsequently dropped onto
a hill where they engaged the enemy in
combat). He asked to remain in the
rear but his request was denied. Con-
sequently, he left the company area
because, in the words of his chaplain,
"the threat of death caused him to ex-
ercise his right of self preservation. "
Applicant was apprehended while travel-
ing on a truck away from his unit with-
out any of his combat gear.
Once a soldier arrived in Vietnam, he was less likely to
go AWOL. However, he was permitted to return to the U.S. on
emergency leave when appropriate. Also, he was offered several
days of "R&R" (Rest and Relaxation) at a location removed from
combat zones, and frequently outside of Vietnam. It was on these
sojourns outside of Vietnam that some of our applicants departed AWOL.
16
(Case # 4366) Applicant was granted emergency leave from Vietnam due to his father's
impending death. Applicant failed to return from the leave.
Many of our applicants served with distinction in Vietnam. They fought hard and
well, often displaying true heroism in the service of their country. Of our applicants
who served in Vietnam, one in eight was wounded in action.
(Case # 2065) While in medic in Vietnam, applicant (an American Indian) received
the Bronze Star for heroism because of his actions during a night
sweep operation. When his platoon come under intense evening fire,
he moved through a mine field under a hail of fire to aid his
wounded comrades. While in Vietnam, he was made Squad Leader of
nine men, seven of whom (including himself) were wounded in action.
In addition to his Bronze Star, he received the Army Commendation
Medal with Valor Device, the Vietnam Service Medal with devices,
the Vietnam Campaign Medal, and the Combat Medic's Badge.
Others experienced severe psychological trauma from their combat experiences;
some applicants turned to drugs to help them cope.
(Case #00188) During his combat tour in Vietnam, applicant's platoon leader, with
whom he shared a brotherly relationship, was killed while awakening
applicant to start his duty. He was mistaken for Viet Cong and shot
by one of his own men. This event was extremely traumatic to the
applicant, who experienced nightmares. In an attempt to cope with
this experience, he turned to the use of heroin. After becoming an
addict, he went AWOL.
17
Still other applicants indicated that combat experience was a source of
personal fulfillment.
(Case #0423)
Applicant, who was drafted, was pleased by his
assignment to Vietnam
of his confidence
in his training and membership in a cohesive,
elite unit.
Our applicants who served in Vietnam, almost half had volunteered either for
Vietnam service, for Combat action, or for an extended Vietnam tour. They
enjoyed the close comradeship of combat situations and felt a sense of
accomplishment from doing a difficult job well. Some applicants went
AWOL because of their inability to extend their tour in Vietnam.
(Case # 8232) While in Vietnam, applicant tried to extend his tour
but his request was never answered. He was told much
later that he would have to wait until he returned
stateside. After he did, he was told that he could
not return, so he went AWOL. He had derived satis-
faction from his work in Vietnam because he was
respected, and he found the atmosphere close and
friendly.
By contrast, combat experience for some applicants produced a sense of uneasi-
ness about the cause for which they were fighting.
(Case #03697) Applicant was successfully pursuing his military
career until he served in Cambodia assisting the
Khmer Armed Forces. He began to experience internal
conflicts over the legality and morality of Army
operations in Cambodia. This reinforced his feelings
and resulted in disillusionment.
Our Vietnam Veteran applicants frequently articulated severe readjustment
problems upon returning to the United States. This "combat fatigue" or "Vietnam
syndrome" was partly the result of the incessant stress of life in combat. Our
Board found that 6.4% of our applicants suffered from mental stress caused by combat.
(Case # 2892) After returning from two years in Vietnam, applicant
felt that he was on the brink of a nervous breakdown.
He told his commander that he was going home and could
be located there, if desired. He then went AWOL from
his duty station.
Two-filths of our Vietnam veteran applicants (11% of all military applicant)
IV-C-
claimed to have experienced severe personal problems as a result of their tour
of duty. These problems were psychological, medical, legal, financial, or
familial. One-third of their psychological and medical problems were permanent
disabilities of some kind. They ofter complained that they had sought help,
received none, and departed AWOL as a consequence.
(Case # 2065) (This is a continuation of the case of the American
Indian who received a Bronz Star for heroism) After
applicant's return to the United States from Vietnam,
he asked his commanding officer for permission to see
a chaplain and a psychiatrist. He claimed that he was
denied these rights, so he decided to see his own
doctor. He was given a psychological examination and
was referred to a VA hospital. After a month of care,
he was transferred back to camp. He again sought
psychiatric care, but could find none. Later, he was
admitted to an Army hospital. One examining psychiatrist
noted that he needed prompt and fairly intensive short-
term psychiatric care avert fourther complications of
his was experience. His many offenses of AWOL were due
to the fact that he felt a need for psychiatric treat-
ment but was not receiving it.
Our Vietnam veteran applicants frequently complained that upon return to
stateside duty, they encountered a training Army and the routine of peacetime duty
lacking the satisfaction of the more demanding combat environment. Some adjustment
problems may have resulted from their injuries.
(Case #08349) After his return from Vietnam, applicant was frustrated
over his inability to perform his occupational speciality
as a light vehicle driver due to his injuries. His work
was limited to details and other menial and irregular
activity that led him to feel "like the walls were closing
in on me." He then went AWOL.
Unfortunately, other soldiers who had never seen combat experience were some-
times unfriendly to our applicants who had, adding to the combat veteran's readjust-
ment problems.
(Case # 8145) While in Vietnam, applicant saw much combat action and re-
ceived numerous decorations. He was an infantryman and
armor crewman who served as a squad and team leader. He
participated in six combat campaigns, completed two tours
in Vietnam, and received the Bronze Stars for heroism.
In one battle, he was wounded -- and all his fellow
soldiers were killed. Ilis highest rank: was staff sergeant
(E-6). Upon his return from Vietnam, he went AWOL because
9
IV-C-,
of harassment from fellow servicemen HAD that he was only a
"rice paddy NCO" who would not have A his rank if not for the
war.
Veterans of other wars usually came home as national heroes. The Vietnam
veteran, however, was sometimes greeted coolly. Some of our applicants were disap-
pointed by the unfriendly reception they were given by their friends and neighbors.
Many Vietnam veterans, deeply committed to the cause for which they had been fighting
were unprepared to return home to an America in the midst of controversy over the
war.
(Case #
) Applicant received a Bronze Star and Purple Heart
in Vietnam. He wrote the following in his appli-
cation for clemency: "While in Vietnam, I didn't
notice much mental strain, but it was an entirely
different story when I returned. I got depressed
very easily, was very moody, and felt as if no one
really cared that I served their country for them.
And this was very hard to cope with, mainly because
while I was in Vietnam I gave it 100%. I saw enough
action for this life and possibly two or three more.
I hope that someone understands what I was going
through when I returned."
(Case # 8145) On his return from combat in Vietnam, applicant found
it difficult to readjust to stateside duty. He was
shocked by the civilian population's reaction to the
war and got the feeling he had been "wasting his time."
20
AWOL Offenses:
By going AWOL, our applicants committed at least one of
three specific military offenses: AWOL (Article 85, UCMJ), De-
sertion (Article 86, UCMJ), and Missing Movement (Article 87, UCMJ).
Of the three, desertion was the most serious offense. To commit
desertion, our applicants had to be convicted of departing with the
intent to avoid hazardous duty or shirking important service (the
most serious form of desertion), or departing with the intent to
permanently remain away. Though the military service administra-
tively classified most of our applicants as deserters, usually
because they were gone for periods of excess of 30 days, only 9.2%
of our applicants were convicted of the offense of desertion. De-
sertion convictions were infrequent because of the difficulty in
proving intent.
A soldier could be convicted of missing movement when he
failed to accompany his unit aboard a ship or aircraft for trans-
port to a new position. Only 0.9% of our applicants were con-
victed of missing movement.
The majority of our applicants - 90% - were convicted of
AWOL. AWOL was the easiest form of authorized absence to prove,
where the evidence did not establish the intent element of desertion,
a military court could still return a finding of AWOL.
Our military applicants went AWOL from different assignments, for different
reasons, and under a variety of circumstances. As described earlier, 7% left
from basic training, 10% from advanced individual training, 52% from other
stateside duty, 24% because of assignment. to Vietnam, 3.4% from Vietnam, and
1.3% from Vietnam leave. The remaining 2.3% went AWOL from overseas assignments
courtries other than Victure
21
As a criminal offense, AWOL is peculiar to the military. If a student
leaves his school, he might be expelled. If an employee) leaves his job, he might
be fired and suffer from a loss of income. But if a serviceman leaves his post, he
might not only be fired, but also criminally convicted, fined, and imprisoned.
These extra sanctions are necessary -- especially in wartime -- to maintain
the level of military discipline vital to a well-functioning Armed Forces.
Desertion in time of Congressimally-declared war carries a possible death
penalty, and most of the offenses committed by our applicants could have
brought them long periods of confinement. Such swift, certain,
and severe penalties are necessary to deter military misconduct,
It is fundamental to military discipline, and literally a matter
of life and death in the face of enemy fire.
In light of this, why did all of our applicants go AWOL? Why did an
estimated 500,000 soldiers go AWOL during the Vietnam War? Almost 4,000 of
our applicants were Vietnam combat veterans, yet they risked -- and lost --
many privileges and veterans benefits as a result of their offenses.
Though the general publichas frequently assumed that many unauthorized
absences during the Vietnam era were motivated by conscientious opposition
to the war. and this was a factor motivating this program, only 4.6% of
our military applicants went AWOL primarily because of an articulated
opposition to the war. *
(Case #03285)
Applicant decided he could not conscientiously remain in
the Army and went to Canada where he worked in a civilian
hospital. Prior to his discharge, applicant stated: "In
being part of the Army, I am filled with guilt. That guilt
comes from the death we bring. 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."
*By coincidence, this 4.6% figure corresponds to the 4.6% of all cases in which
our Board identified conscientious reasons (mitigating factor #10). It is very
close to the 3.6% finding of an earlier AWOL study.
(
).
22
An additional 1.3% went AWOL to avoid serving combat, while another
9.7% left because they did not like the military. In rare cases, either
may have implied an unarticulated opposition to the war. Thus, slightly
more than 4.6% of our applicant's offenses may have fit a broad definition
of conscientious objection.
(Case #1902)
Applicant left high school at age 16 due to poor grades
and disinterest. He was inducted, but after one week
of Basic Combat Training, he left AWOL. Though he was
not discharged until two years later, he only accumulated
18 days of creditable service.
A small but significant 1.8% of our applicants went AWOL because of post-
combat psychological problems.
(Case #8887)
Applicant received a Bad Conduct Discharge for an AWOL
between 16 March and 28 November 1970. This AWOL was
terminated by surrender in California. Applicant went
AWOL because he was "disturbed and confused" upon returning
from Vietnam. He described himself as "really weird, enjoying
killing and stuff like that", and as being "restless".
During the AWOL, he was totally committed to Christ and the
Ministry.
In some instances, an applicant's actions seemed beyond his reasonable
control.
(Case #05233)
Applicant participated in 17 combat operations in Vietnam.
He was medically evacuated because of malaria and an acute
drug induced brain syndrome. He commenced his AWOL offenses
shortly after he was released from the hospital. Since his
discharge, applicant has either been institutionalized or
under constant psychiatric supervision.
Approximately thirteen per cent of our applicants left the military
because of denied requests for hardship leave, broken promises for occupational
assignments and improper enlistment practices, or other actions by their
superiors which they might not have liked.
23
(Case #0751)
Applicant enlisted for the specific purpose of learning
aircraft maintenance, but instead was ordered to Artillery
school. When he talked with his commanding officer about
this, he was told that the Army needed him more as a
fighting man. He later went AWOL.
(Case #4793)
Applicant, a Marine Sergeant (E-5) with almost ten years of
creditable service, requested an extension of his tour in
Okinawa to permit him time to complete immigration paperwork
for his Japanese wife and child. Several requests were denied.
Upon return to the United States, he again requested time
in the form of leave. He was unable to obtain leave for
five months, until it was granted after he sought help from
a Senator. Applicant relates that his First Sergeant warned
him, before he left on leave, that "he was going to make
it as hard for him as he could" when he returned, because he
had sought the assistance of a senator.
Some may have committed their offenses because of their basic unfitness
for military service at the time of their enlistment.
(Case #14813)
Applicant has a category IV AFQT score. He went AWOL because
he was apparently unaware of or did not understand the Army
drug abuse program. The corrections officer at the civilian
prison where he is incarcerated believes that applicant's
retardation, while borderline, makes it impossible for him
to obey rules and regulations.
Sixteen percent committed their offenses because of personal reasons --
usually medical or psychological problems. Half of their problems were
related to alcohol or drugs.
(Case #01371)
Applicant started drinking at age 13 and was an excessive
user of alcohol. Awaiting court-martial for one AWOL
offense, applicant escaped but voluntarily returned shortly
thereafter. He claimed that his escape was partly the result
of his intoxication from liquor smuggled in by another
detainee. A psychiatrist described him as emotionally
unstable, unfit for military service.
The bulk of our military applicants--41%--committed their offenses because
of family problems: Sometimes these problems were severe; sometimes not.
(Case #00191)
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 before his offense. While applicant was AWOL
his father died of a stroke. His mother was left with
a pension of $22 a month; she was a polio victim and unable
to work.
(Case #11835)
Applicant indicated he went AWOL from leave which had been
granted so he could see his wife and newborn child.
Finally, twelve percent of our sample of applicants
went AWOL for reasons of immaturity, boredom, or just plain
selfishness. These tended to be people who could not--or
would not-- adjust to military life.
(Case #14392)
As a youth, applicant experienced numerous conflicts with his
parents and ran away from home on several occasions. He
joined the Army because there was nothing else to do in
the rural community in which he was raised. Applicant had
difficulty adjusting to the regimentaion of Army life, and
he went AWOL four times.
Some of our applicants offered bizarre excuses for their offenses.
(Case #16332)
Applicant states he was traveling across the Vietnamese
countryside with a sergeant, when he and the sergeant were
captured by the Viet Cong. He claimed that he was a POW
for two months before he finally escaped and returned 30 pounds
lighter and in rags to his unit. His unit commander did
not believe his story, and his defense counsel advised him
to plead guilty at his trial.
Our typical applicant went AWOL three times; over four-fifths went AWOL
more than once. They tended to be 19 or 20 when they committed their first
offense, and 20 or 21 when they committed their last offense.
Our applicants' first offense usually occurred between 1968-1970, and their
last between 1969-71. Typically, their last AWOL was their longest, lasting
seven months. One-fourth (25%) were AWOL for three months or less, and 27% were
AWOL for over one year. Only 3% were AWOL for more than four years.
(Case #243)
Applicants military records reflect a series of
unauthorized absences, the longest amounting to five
years and five months, with only one month's creditable
service.
At the time of their last AWOL, they had typically accumulated 14 months
of creditable military service time; 81% had six months or more of creditable
service, enough to qualify them for Veterans benefits. Only 1.1% used any
force to effect their escape from the military.
Over three-quarters (76%) either returned to military control immediately
or settled in their home towns under their own names. Most carried on life
just as they had before they joined the service. Another 13% settled openly
in the United States, and 6% settled in the foreign country where they had
been assigned (often Germany). Only 5% became fugitives: 2% in Canada, 2%
in other foreign countries (often Sweden), and 1% in the United States.
(Case #00847)
Applicant went back to his old job after going AWOL. He
never changed his name or tried to conceal his identity.
While AWOL, most of our applicants (81%) were employed full-time. Only 8%
were unemployed. Often they were working in jobs where they would have been
fired, lost their union membership, or had their trade license revoked if
their AWOL status had been known.
(Case #00230)
During his AWOL, applicant found employment as a tile and
carpet installer. He became a union member in that trade.
(Case #08145)
During his AWOL period, applicant worked. as a carpenter to
support his sister's family. Later, he worked as a security
guard.
Slightly over half (52%) of our applicants were arrested for their last
AWOL offenses. Some efforts were made to apprehend AWOL soldiers, but those
efforts were startlingly ineffective. *
* Normally, an AWOL offender's commanding officer sent a letter to his address
of record within ten days of his absence. He also completed a form, "Deserter
Wanted by the Armed Forces," which went to the military police, the FBI, and
eventually the police in the soldier's home of record.
26
Either the local police never received bulletins about AWOL offenders, or
they were unwilling to arrest them. We had countless applicants who lived
openly at home for years until they surrendered or were apprehended by
accident (for example, through a routine police check after running a red
light). In some cases an applicant's family was not even notified of his AWOL
status.
(Case #03697)
Applicant had a duty assignment at a military office in
Germany. He experienced a great deal of tension, frustration,
and restlessness, culminating in a feeling one day that he
"couldn't face" going to work. He remained at his off-post
home during his AWOL. His office made no effort to contact
his wife during the entire period of his AWOL. He drank
heavily, became anxiety-ridden, and concealed his AWOL
status from his wife by feigning to go to work each morning.
He was eventually apprehended when his wife, concerned over
his strange behavior, called his office to ask his co-workers
if they knew what was wrong with him. They had not seen him
in months.
27
7.
Experience with the Military Justice System
Upon returning to military control, our applicants had to face some
form of discipline. Some (14%) faced other charges in addition to AWOL or
desertion, In all cases, their last AWOL offenses factored in their discharge
under other than honorable conditions. Hundreds of thousands of other AWOL
offenders were more fortunate. They received more lenient treatment and
later were discharged under honorable conditions. About twenty-two percent
of our applicants had records reflecting at least one period of unauthorized
absence with no record of punishment.
Most of our Army applicants who were AWOL for over thirty days were
processed, upon their return to military control, through a Personnel Control
Facility (PCF) formerly known as Special Processing Detachments. Life at
these minimum - security facilities was not always easy for our applicants.
(Case #08349) Applicant voluntarily surrendered himself to an Army post
near his home town. He found conditions in the personnel
control facility intolerable due to the absence of regular
work, the prevalence of crime, and the continued lack of
regular pay. He went AWOL again one week later.
While in the PCF, our applicants were processed for administrative or
court-martial action. Also, it was here that the decision was made, in
appropriate cases, to place returning offenders in more secure pre-trial
confinement. At the outset, they were briefed by a JAG officer (a
military attorney) who advised them generally what disciplinary actions to
expect. They were told about their opportunity to request a discharge in
lieu of court-martial.
Some first offenders were quickly re-integrated into military life.
Others faced more uncertainty about their fates. They had to decide, in
most instances, whether to proceed to a trial or accept an administrative
28
discharge. The decision to go to trial usually carried the risks of
conviction, a period of confinement, and perhaps a punitive dishcarge. On
the other hand, a court-martial did not always lead to discharge: A
convicted soldier might be returned to active duty and given an opportunity
to serve his enlistment (which would be extended by the time he was AWOL
and in confinement). Even if a punitive discharge had been adjudged, a
return to duty was frequently permitted if an individual demonstrated
rehabilitative potential while confined. If no further problems developed,
he would receive a discharge under honorable conditions, with entitlement to
veterans' benefits. In fact, over half (54%) of the earlier AWOL courts-
martial faced by our applicants resulted in their return to their units.
However, our applicants were unable to make the most of their second chance.
(Case #11835) Applicant was convicted of 4 periods of AWOL totaling
one year and two months. He had an exemplary record for
valor in Vietnam. The convening authority suspended the
punitive discharge adjudged by his court-martial. The
discharge was reimposed, however, after he failed
to return from leave granted him following his trial.
Our applicants decision to accept an administrative discharge in lieu of
trial amounted to a waiver of trial, a virtual admission of guilt, and
a discharge under less than honorable conditions. However, the administrative
process was speedier, permitting rapid return home to solve personal problems.
It also involved no risk of imprisonment. However, although he was
aveiding a Federal criminal conviction, he did acquire a stigmatic discharge.
He also lost his opportunity to defend charges against him. Thus, the choices
for our applicants were very difficult.
If our applicant had established what his. commander felt was a pattern
of misconduct, the commander might decide that he was no longer fit for
active duty.
29
(Case No. 4072) Applicant was discharged for unfitness due to frequent
use of drugs, habitual shirking and repeated AWOL and
demonstrated inability to conform to acceptable standards
of conduct.
The commander would then notify the soldier of his intention to
discharge the soldier, who could choose to fight the action by demanding a
Board of officers, or waive his right to such a Board. If he asked for the
Board, the convening authority would then detail at least three officers
to hear the evidence, as presented by the government, and as rebutted by the
respondent and his assigned military defense counsel. The Board was then
authorized to determine whether the soldier was either unfit or unsuitable
for further military duty, if they believed he should be discharged. (They
could also recommend his retention in the Service). If they found the
soldier unsuitable, the normal recommendation would be discharge under
honorable conditions. A discharge under honorable conditions was also
possible if unfitness were found, but the usual result in such a case was
to recommend an undesirable, discharge. Once the Board made its recommendations,
the convening authority had to make a final decision.
The choice between a discharge for unsuitability (usually a General Discharge)
and a discharge for unfitness (usually an Undesirable Discharge) affected an
AWOL offender's reputation and eligibility for veterans' benefits for the
rest of his life. The decision was based upon a serviceman's whole record. *
* The rule-of-thumb often applied is that an Unsuitability Discharge went
to a soldier "who would if he could, but he can't" -- in other words, to
someone with a psychological problem or inaptitude. An Unfitness Discharge
went to a soldier with more of an attitude problem, "who could if he would,
but he won't."
30
(Case #8328)
Applicant was under consideration for an unsuitability
discharge. A military psychiatrist indicated that he
suffered from a character and behavior disorder characterized
by "impulsive, escape-type behavior" and "unresolved emotional
needs marked by evasion of responsibility". Because of this
diagnosis of a severe character and behavior disorder, he
expected a General Discharge. Shortly before his discharge,
a racial disruption occurred in his company, in which applicant
took no part. This disruption led to the rescission of a
lenient discharge policy and applicant was given an Undesirable
Discharge for Unfitness.
The more common administrative procedure, accounting for the discharge
of 45% of our applicants, was the "For the Good of the Service" discharge,
given in lieu of court martial,* which was granted only at the request of a
soldier facing trial for an offense for which a punitive discharge could
be adjudged. Until recently, it did not require an admission of guilt -- but
it did require that the AWOL offender waive his right to court-martial and
acknowledge his willingness to accept the disabilities of a discharge under
other than honorable conditions (e.g., Undesirable Discharge). Unlike our
applicants, a few AWOL offenders received General Discharges through "Good
of the Service" proceedings, because their overall needs were satisfactory.
Our applicants did not have a right to a discharge in lieu of court-martial;
they could only make a request. To qualify, the AWOL for which the applicant
was facing trial had to range between 30 days and a year and a half, depending
on the standards set by the convening authority where the applicant returned
to military control.
(Case #0664)
Applicant was absent without leave twice for a total of almost
one year and two months. He applied twice for a discharge in
lieu of court-martial for his AWOL's but both requests were
denied.
Occasionally, our applicants indicated that they went AWOL specifically to
qualify for a "Chapter 10" discharge.
*This is commonly called the "Chapter 10" discharge within the Army, referring
to AR 635-200 Chapter 10.
31
(Case #15528) After his third AWOL, applicant requested a discharge in
lieu of court-martial, which was denied. He then went AWOL
three more times. He told an interviewing officer after
his 6th AWOL that he had gone AWOL in order to qualify for
a Chapter 10 discharge.
AWOL offenders who qualified for a discharge in lieu of trial rarely chose
to face a court-martial. The desire was often strong to leave PCF or get
out of pre-trial confinement. If a soldier was granted a Chapter 10 discharge,
he was usually allowed to leave the PCF or confinement within one week after
his application. One to two months later, he was given his discharge.
Occasionally, our applicants claimed that they went home expecting to
receive a General Discharge, only to get an Undesirable Discharge.
While it was a permissible practice in the Army prior to 1973 for an
accused to condition his request for discharge in lieu of trial upon his
being granted a General Discharge under honorable conditions, this was
rarely granted. In order to speed the discharge application, many soldiers
requested discharge, acknowledged that they might be given a UD, but re-
quested that they be furnished a General Discharge in a separate statement.
This may account for some misunderstanding by many applicants as to the
discharge they would receive.
(Case #04977) Applicant's last AWOL ended in a 30-day pre-discharge
confinement, where he refused to sign a Article 15. He
alleged that his First Sergeant told him that if he
did not sign, he would be unable to see anyone about his
problem. He further alleged that he was promised nothing
more severe than a General Discharge, so he signed the
papers. Instead he was given an Undesirable Discharge.
Later, he appealed his discharge before the Army Discharge
Review Board, but he was unsuccessful.
Our applicants who received discharges in lieu of trial generally were
those whose last AWOL ended between 1971 and 1973. The likelihood of
receiving a discharge was greater if their AWOL had been no more than one
year in length.
32
(Case #612)
Applicant wrote that he looked around for ways to deal
with his personal pressures and finally decided to go AWOL.
After three months living in a "hippie commune" he
returned with the expectation he would be discharged. He
obtained a discharge in lieu of court-martial.
The following two tables relate the effects of year of discharge and length
of last AWOL on the type of punishment which our applicants received.
YEAR OF DISCHARGE
1966
1967
1968
1969
1970
1971
1972
1973
UD - in lieu of trial
3%
1%
11%
37%
34%
67%
62% 56%
UD - Unfitness
26%
25%
27%
19%
10%
12%
6%
12%
Punitive Discharge
(court-martial)
71%
74%
62%
54%
56%
21%
32% 32%
LENGTH OF AWOL
0-6 months
7-12 Months
Over 12 Months
UD - Discharge in Lieu of trial
50%
45%
36%
UD - Unfitness
21%
10%
7%
Punitive Discharge
29%
45%
57%
(Court Martial)
It is worth noting that 51% of our AFQT Category IV applicants received
discharges in lieu of trial compared to 44% of our Category II and III appli-
cants and only 32% of our Category I applicants. Blacks were about equally
as likely as whites to receive Chapter 10 discharges (46% versus 44%) , but
Spanish-speaking soldiers were much more likely to receive them (66%)
33
Some of our applicants requested -- or the military insisted -- that
they face court-martial for their offenses. In a court-martial, they had
greater opportunity to deny or explain all charges brought against them,
with benefit of counsel and with full advance knowledge of the prosecution's
case. They also faced the threat of a punitive discharge and imprisonment.
An accused soldier enjoyed at least as many rights at trial as an accused
civilian. Usually, his court-martial took place very promptly, limiting
pre-trial delays (and therefore, confinement or residence at the PCF) to
two or three months at most.
There were three forms of court-martial. The Summary Court-Martial
consisted of a hearing officer (Summary court officer) who called witnesses
for the prosecution and defense, rendered a verdict, and adjudged sentence.
The summary court adjudged no sentence greater then confinement at hard
labor for one month (and then only if the accused was in pay grade E-4 and
below), hard labor without confinement for 45 days, reduction to the lowest
*
enlisted pay grade, and forfeiture of two-thirds of one month's pay. After
197_, no confinement could be adjudged unless the accused were represented by
counsel, as a consequence of the ruling by the Supreme Court in Argisinger
V. United States. No transcript of the trial was kept, and there was no
judicial review. However, a summary court never sat in judgment without the
express consent of the accused, who could refuse the court and leave to the
convening authority the decision whether to refer the charges to a higher
court. Altogether, 16% of our applicants faced a summary court-martial
at least once.
*Soldiers in grade E-5 and above could be reduced only to the next inferior
pay grade. Argisinger V. United States
U.S. (197
34
The 54% of our applicants. who faced a Special Court were tried by a
court of officers unless they specifically requested that at least one-third
of the court be enlisted members. usually of high rank. After 1969,
a military judge normally presided over the trial, and the accused was en-
titled to request that the military judge alone hear the case and adjudge
sentence. In the absence of a military judge, the President of the court of
members the senior member presided over the trial.
The Special Court could adjudge no sentence greater than confinement
at hard labor for six months, two-thirds forfeiture of pay for six months,
reduction to grade E-1, and a Bad Conduct Discharge. OF our applicants tried by
a Special Court, 50% received a Bad Conduc t Discharge. The other half were
returned to their unit.
The 13% of our applicants who were tried by a General Court-Martial
faced a possible sentence of up to 5 years imprisonment, a Dishonorable
Discharge, and total forfeiture of pay and allowances.
Of our applicants tried by a General Court, 99% were ordered discharged, al-
most all (85%) with a Bad Conduct Discharge.
The General Court was similiar in composition and procedure to the
Special Court, Our applicants facing Special or General were entitled
to free JAG defense counsel after 1969. The service detailed defense
counsel to them, and permitted them any counsel requested by name, provided
the attorney was "reasonably available. II They also could secure a civilian
attorney, but at their own expense. The rules of evidence were followed and
a verbatim record of trial was required if punitive discharge was adjudged.
*
In the Army, a Bad Conduct Discharge was adjudged only where
the convening authority expressly authorized the Special Court to
adjudge a punitive discharge.
35
Special or General
Altogether, 40% of our applicants stood / court-martial for their last
AWOL offense. Of those, about 16% pled "not guilty. All were convicted,
and all but a few received punitive discharges. They were further sentenced
to pay forfeitures, reduction-in-rank, and imprisonment for typically
seven months. Their sentences were often reduced through the automatic
review of the Court of Military Review. Our court-martialed applicants'
final sentences averaged five months, with only 3% having to serve more
than one year in prison.
Our applicants who were punitively discharged had their cases reviewed
for errors of law by a JAG officer responsible to the court-martial con-
vening authority. They were further reviewed for errors of fact or law by
a Court of Military Review (previously known as Boards of Review) and
occasionally by the Court of Military Appeals.
Few of our applicants voiced objection to the fairness of their trials,
but some complaints were heard.
(Case #00423)
Applicant, a Vietnam veteran, sustained some sort of eye
injury (probably in Vietnam) which caused his retina to
become detached. He is now nearly blind in one eye. At
trial, his counsel attempted to introduce the testimony
of his attending ophthalmologist to prove that he
absented himself to obtain medical treatment, not to
desert. The military judge refused to admit the
ophthalmologist's testimony, in the absence of indepen-
dent evidence of its relevancy. His decision was upheld
on appeal.
Sentences under 30 days were usually served at the post stockade. Con-
victed but undischarged AWOL offenders sentenced to more than one month of
imprisonment were transferred to the Army Retraining Brigade at Fort Riley,
Kansas. Efforts were made to rehabilitate the offender and enable him to
36
complete his military service successfully. However, many were habitual
offenders. For others, military life became even more difficult after
confinement.
(Case #356)
As the result of a two-month AWOL, applicant was
convicted by a summary court-martial and sentenced to
confinement. After his release and return to his
former unit, he was constantly harassed, ridiculed,
and assigned to demeaning work. He found this intolerable
and he went AWOL again.
Those who were pending punitive discharges and had received sentences
of over 30 days were sent to the Disciplinary Barracks at Fort Leavenworth,
Kansas. Approximately 170 of our applicants were still serving their terms
when the President's Clemency Program was announced. They were all released
upon their application for clemency.
LE
Effects of the Bad Discharge
All of our applicants had one experience in common: They all received
bad discharges. Sixteen percent received Undesirable Discharges for Unfitness,
and 45% received Undesirable Discharges in lieu of court-martial. Those
who faced court-martial and received punitive discharges receiv d Bad
Conduct Discharges (38%) or Dishonorable Discharges (2%). In some states,
a court-martial conviction, particularly if it led to a discharge or confinement
over one year, incurs the same legal disabilities as a felony conviction
in the civilian courts. Thus, some of our applicants lost their voting
and property rights and the opportunity to obtain certain licenses by
virtue of their punitive discharge.*
Civilian courts have taken judicial notice of the less-than-honorable
discharge, calling them "punitive in nature, since it stigmatizes a
serviceman's reputation, impedes his ability to gain employment and is in
life, if not in law, prima facie evidence against a serviceman's character
patroitism or loyalty.*
*Before applicants could submit to any proceeding which might result in un-
desirable discharge, each was warned as follows:
"I understand that I may expect to encounter substantial prejudice in
civilian life in the event a general discharge under honorable conditions
is issued me. I further understand that as a result of the issuance of
an undesirable discharge under conditions other than honorable, I may
be ineligible for many or all benefits as a veteran under both federal
and state laws and that I may expect to encounter substantial prejudice
in civilian life. "
** Stap V Resor, 314 F. Supp. ; accord Sofranoff V. U.S. ; 165 Ct. C1. 470,
478 (1964), Glidden V. U.S., 185 Ct. C1. 515 (1968); Bland V. Connally,
293 F. 2d. 858
(
Cir 1961)
38
What was more important to our applicants was the effect of discharge
on their ability to get veteran's benefits and obtain a job. Most of our
applicants were 20 - 22 when they received their less than honorable
discharges. Many were looking for their first full time civilian job.
Some were caught in a downward spiral: They could not afford to train
themselves for a skilled job without veterans' benefits. Employers would
not hire them for other jobs because of their discharge. They then
could not receive unemployment compensation.
(Case #08062)
Applicant was unable to go to Accountant's School. without
benefit of the GI Bill -- from whose benefits he was barred.
Finally he found employment as a truck driver for small
trucking firms and is now earning $70 per week. He could
have earned more with the larger trucking companies but
they refused to hire him because of his dis harge.
39
(Case #08232)
Applicant, a Vietnam veteran, was unable to find work
for his first month after discharge because everyone
insisted upon knowing his discharge. He finally found work
as a painter but was laid off five months later. Because
of his discharge he was denied unemployment benefits.
A number of studies have shown that employers discriminate against former
servicemen who do not hold Honorable Discharges. About 40% discriminate against
General Discharges, 60% against Undesirable Discharges and 70% against Bad Conduct
or Dishonorable Discharges. Many employers will not even consider an application
from anyone with less than an Honorable Discharge.
The injury caused by the discharge under other than Honorable Conditions is
particularly acute in the case of our applicants who served more than enough time
to have earned veterans' benefits, and who obtained Honorable Discharges for the
purpose of re-enlisting, but who received bad discharges in their last period of
enlistment
In most cases, their bad discharges lost them the veterans'
benefits they had previously earned.
Thirteen percent of our applicants had more
than three years of creditable service, and 4% had more than 5 years.
(Case #04793)
Applicant enlisted in the Marine Corps in 1961 and received
his first Honorable Discharge four months later, when he
reenlisted for four years. He received his second Honorable
Discharge in 1965, and he again re-enlisted. He received
a third Honorable Discharge in 1968 and again re-enlisted.
He had good proficiency and conduct ratings (4.5), and
he had attained the rank of Sergeant E-5. He went AWOL for
4½ months in 1970 before receiving a Bad Conduct Discharge
in 1971. His total creditable service was 9 years, 10 months,
and 15 days.
Of our applicants whose current employment status we know, 6% are in school,
17% are unemployed, 4% are working part-time, and the rest (73%) are working
full time. Two in five of those working full-time are in low-skilled jobs.
Unfortunately, many of our applicants also turned to crime. At the time of their
application, 12% of our military applicants had been convicted of civilian felony
offenses--half of whom had committed violent crimes. At least 7% of our applicants
were incarcerated for civilian offenses at the time they had applied for clemency.