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Final Report - Draft, 8/29/75 (2)
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Final Report - Draft, 8/29/75 (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
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The original documents are located in Box 4, folder "Final Report - Draft, 8/29/75 (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States of America his copyrights in all of his unpublished writings in National Archives collections.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 4 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
E-17
After the case summary was completed and reviewed by Quality Control,
it was mailed to the applicant and docketed for Boa rd review. Originally,
it was the Board's intended policy to wait 30 days before hearing the case,
in order to allow the applicant time to respond to the summary. Because
the case preparation never ran very far ahead of Board consideration, the
cases were heard prior to the expiration of this period. In order to
accommodate this change, the rules provided that the submission of any fact
which could possibly effect the preliminary result would cause the case to
be referred to a new panel. To guard against penalizing an applicant from
this double review, the second panel was barred from recommending a more
severe result. The only exception to this was if the subsequent infor-
mation disclosed a serious felony which the Board could not properly ignore.
Board Consideration
The entire case preparation stage was, of course, preliminary to the
presentation and review of the case by the Board members. In the early,
formative meetings, the Board briefly considered alternatives of delegating
some evaluative role to the staff. This suggestion was raised again when
the large influx of cases required us to reconsider our procedures. From
the start, however, the Board was unanimous in the view that the full
FORD
responsibility for review and recommendation should lie with it alone.
GERALD
To ensure the integrity of this process, and to preserve the objectivity
of the staff attorney presenting the case, the Board also rejected the idea
of having the staff make preliminary recommendations as to the proper case
disposition. On occasion, Board members asked the staff attorney involved in
the case for a judgment on particular facts, primarily because the attorney
was closely familiar with the entire record. But this happened infrequently,
and staff attorneys were continually reminded that they were not advocates
E-18
for or against the applicant.
The Board did not consider itself as operating in an adversary setting,
so its deliberations were not conducted in that form. An efficient adversary
proceeding demands vigorous representation on both sides, cross-examination,
and strict requirements of proof and rebuttal. This was totally inappropriate
to a clemency proceeding, with neither our applicants nor their counsel
present during almost all case hearings. By rejecting an attorney approach,
the Board was not required to be formal in its proceedings, and its
deliberations were not as brutal and competitive as are ordinary trials.
The purpose of the President's program was to heal wounds and to reconcile,
and the Board's approach was consistent with that goal.
Originally, cases were presented to the Board, with the attorney giving
a formal recitation of the facts of the case. This procedure proved
impractical when the Board's docket expanded in January, February and March.
Thereafter, with the increase of the Board from nine to eighteen, and the
case-preparation staff from about a dozen to 300, the Board changed its
procedure. Members sat in panels of 3 or 4 which were changed weekly, and
sometimes more often. In advance of each panel meeting, case summaries were
distributed to each panel member. On an average week, each panel was
responsible for 100-125 cases each day, and a weekly total of 300-450. This\
CERALD
usually meant two days of reading cases for every three days of decision.
Panels were sometimes scheduled such that Board members would meet more often,
and case-reading was done on weekends. From June through late August, an
average Board member met in panels or in plenary session or to read cases
4 days each week. We calculate that some members heard as many as 5000 cases,
with the average member sitting on 3000 cases.
E-19
Because each panel member had read the case summary prior to the formal
deliberation, an oral presentationas no longer required by the attorney.
He was available, however, to submit additional information gathered after
the summary had been prepared, to read letters, and to answer questions
from the full file. Panel members then compared their views on the
applicable aggravating and mitigating factors in the case. Once this was
agreed upon, the panel discussed the proper disposition.
Originally the Board was concerned that the change to a panel proceeding
would seriously impair its work. However, the advance reading more than
counter-balanced the absence of a full recitation. A careful balancing of
panel membership resulted in a remarkable degree of consistency among panels.
The various procedures we initiated for referrals to the full Board were also
designed to ensure a high degree of consistency.
Inevitably fatigue and a large caseload caused problems for each of us.
However, after we adjusted to deciding cases in panels and hearing them
quickly, our consistency on fairness was not materially affected by these
changes. Lengthy discussions did not always shed greater light on a case or
improve our understanding of it. In most instances, the relevant factors were
not in doubt, and the panel members were in substantial agreement on a
recommendation. The vast majority of "easy" " cases like this left sufficient
opportunities for more lengthy discussions about complicated cases. And where
there were any irreconcilable differences in a panel on the treatment of a case,
it was presented anew before the full Board. While there is no question that
we would have preferred a less hectic and exhausting pace than the continuous
schedule we met from June on, we do not believe that our workload resulted in
any measurable impact on the efficiency or fairness of our work.
GERALD
E-20
Any Board member could freely refer a case from a panel to the full Board for
reconsideration, No case was final until the President had signed a master
warrant which included that case disposition. The Board relied on help from
a computer to compare each result to the pattern of results for similar cases.
Also, any case attorney dissatisfied with any case disposition could flag
that case for determination by the Chairman as to whether it should be
reconsidered by the full Board. A legal analysis staff reviewed the computer-
both
flagged cases (which included, harsh and lenient cases) and the attorney-
flagged cases before they were referred to the Chairman. Altogether, the
computer led to the reconsideration of about 300 cases, the case attorneys
to another 100, and the unaided Board to 600 more. Altogether, 1,000 cases
were reconsidered.
In applying this reconsideration process, the Board was not delegating
its referral function to the staff. Actual referrals could only be made by
a Board member, who actually could accept or reject the advice of the staff.
Openness, Privacy and Counseling
Three aspects of our procedures deserve special emphasis. Because the
Board was concerned about giving the widest possible procedural rights to
applicants, we stressed the openness of our proceedings, the privacy of our
applicant, and his right to counseling.
The Board process was as open as possible, except for the actual dis-
cussion of particular cases. The Board announced its substantive and pro-
cedural rules, published them in the Federal Register, and gave special
attention to giving them wide public distribution. Our major instructions
GERALD
to staff were also distributed to applicants, and supplementary decisions
and precedents were published in a staff publication, the Clemency Law Reporter.
The Reporter was made available on request to the public. Board files were
N-21
open to the applicant but obviously could not be sent to him. This
required the applicant or his attorney to contact someone in the Washington
area to examine the records for him. Where possible, information was
relayed by phone, and small portions duplicated. For the most part, however,
we received few requests for access to file material other than the case
summary. The Board did not consider information not also available to
the applicant.
Applicants were not advised of the Board's recommendations, since as an
advisory body to the President, our advice had to be kept confidential
until the President had made his own decisions. Once the President had acted,
the result was relayed to the applicant, along with a list of the factors
the Board had identified in his case. Obviously, the Board could not
describe how each different member had weighed the combinations and we made
this clear for the applicant. But the listing plus the summary did inform
each applicant how the Board had handled his case. It also gave him a basis
for any application for reconsideration he wished to make.
We tried to reconcile the competing demands of open process and our
applicants' privacy. Applicants were guaranteed confidentiality, and great
care was taken to avoid any identifying information on summaries. The
summary itself was sent by registered mail to prevent anyone but the
applicant seeing it. Information submitted by the applicant was kept confi-
dential, even from law enforcement agencies. Despite the seriousness of the
demand, the Board felt that its promise of confidentiality and the integrity
of the clemency process required that no person be put in a worse position
because he applied. As it turned out, there were less than a dozen inquirie:
from law enforcement agencies, and a good number of these were requests to
see pre-existing official files. The requirements of privacy meant that the
E-22
Board was not able to publish case summaries with dispositions in order to
form a pool of precedents for public guidance. To do so would have
jeopardized the promise of privacy we made to our applicants. For a brief
priod, shorter explanatory paragraphs were prepared describing the decisive
characteristics of each disposition. These proved extremely difficult to
prepare with precision and were not helpful to other applicants or the
press. They were discontinued after a few months in favor of the use of
the Clemency Law Reporter to give definitions and illustrations of factors
we applied in our considerations.
The requirement of privacy inevitably meant that the public was not
well-informed of our proceedings. In only one case did an applicant waive his
rights to a closed hearing and request a public hearing with the press present.
More such cases would have increased public understanding, but it was not
within the Board's province to have them.
Despite the informality and simplicity of our processes, we believed that
we had an obligation to encourage applicants to seek legal counseling. This
was perhaps our greatest disappointment, because the legal assistance
organizations in the country were either unwilling or unable to accept applicants
as a regular matter. Although the Board tried to persuade these groups to allow their
inclusion on our legal referral lists, economic constraints and philosophic
opposition to the program led most to decline, thus leaving willing applicants
to proceed on their own resources. This persuaded us to make our procedures
as flexible as possible, but there is no question that the lesser educated and
disadvantaged could have profited by outside help. This is not to say that no
groups cooperated. The Los Angeles County Bar Association represented a large
FORD
number of applicants and helped many more. A number of veterans groups which
GERALD
E-23
were publicly critical of the program did not let this stand in the way
of their helping former servicemen earn a pardon and a clemency discharge
through our process.
Where counseling was available, it did have an impact especially
when counsel personal appearance. The Board granted only a conditional
right to appear, but the number of requests were never very high.
Of
requests,
were granted. The Board denied
appearances only because our decision to recommend an immediate pardon
made the request moot.
RALD
E.28
SUBSTANTIVE RULES FOR DECIDING CASES
INTRODUCTION
In considering the approximately 16,000 applicants who were eligible for
the program, we confronted an incredibly diverse array of motivations and
situations. In treating applicants as individuals, there was an obvious need
to regularize the decision-making process so that we could be confident that
we would treat individuals in similar positions equitably.
At the very first meeting in which we began to examine cases, we
developed a preliminary set of relevant factors which we announced as important
in evaluating cases. As we came upon new circumstances which we deemed impor-
tant, we added them to our list. This posed no problem of consistency with
past decisions. The Board, however, resisted the temptation to change factors
once decided, or to add factors previously rejected, since it was obviously
inadvisable to apply different rules to later cases. The Board did this only
once, in July, when it made drug addiction a qualifying condition warranting
the application of Mitigating Factor #3. On a few occasions, the Board added
factors to make explicit considerations which it recognized as important and
which it had in fact been applying. And, of course, the meaning and application
of each factor evolved over-time as they were applied to differing circumstances.
In the main, however, the list of factors remained unchanged, and each Board
member diligently applied them to each case. We are persuaded that the use of
a defined set of factors was instrumental in guiding our decisions, in insuring
consistency, and in informing the applicants, the public, and the President of
the way we were carrying out our responsibilities.
By using a specific list of aggravating and mitigating circumstances, we
feel that we achieved several objectives, several of which have been previously
E.29
discussed in this report. Nonetheless, they bear repetition here. First,
we were able to give notice to our applicants of the framework within which
we considered each application. In other words, we were able to maintain a degree
of openness towards our applicants of the framework within which we consider-
ed each application. In other words, we were able to maintain a degree of
openness in our proceedings. Second, the existence of aggravating and mitigating
circumstances forced us as a matter of procedure, to focus on all aspects of an
applicant's case and, therefore, to treat him as an individual. Finally, since
the factors or circumstances found by us were ultimately communicated to the
applicant, it provided individuals with an indication of the basis for our final
decision. It also provided a mechanism with which we could reconsider our own
decision should the applicant appeal.
The second important device we instituted to guide our decisions was to
calculate a baseline period of alternative service for each case. The use of this
formula, a starting point in our deliberation, acknowledged the basic difference
between our applicants and those eligible for the DOJ and DOD programs. We
grounded our calculation on the fact that our applicants had not been fugitives
at the commencement of the program, but had already paid a legal penalty for
their offenses. They had already received a civilian or military conviction,
or a less-than-honorable administrative discharge. In order to reflect the fact
that a pardon for a conviction could never be as beneficial a remedy as complete
relief from prosecution, in all but the rarest case our formula resulted in a
starting-point significantly less than the 24 months which the other two programs
used.
In the following pages, we will discuss at some length how We decided on
these rules and how we applied them. Because this was the basis of our
E.30
work, and because it reflects the differing ways in which each Board member
addressed his or her own responsibilities, we feel this section is parti-
cularly important.
BASE-LINE CALCULATIONS
The base-line formula, once established, remained unchanged throughout our
deliberations. We, like DOD and DOJ, began our calculation with 24 months,
the maximum period set forth in the President's Proclamation. This period
represents the normal amount of military service which each draftee had been
obligated to perform, and the period which conscientious objectors are expected
to serve in lieu of military duty. Because many of our applicants had served
confinement for their offenses, we took this into account by reducing the base-
line by a factor of three months for every month's confinement. The base was
further reduced one month for every month of court-ordered alternative service,
probation, or parole previously served, provided the applicant had not been
prematurely terminated because of lack of cooperation.
This final calculation was subject to three exceptions. First, the baseline
was never less than three months in any case. Second, if the calculated base-
line was greater than either the judge's sentence or the sentence adjudged at
court-martial, that length of sentence became the baseline. Third, in all
cases of undesirable discharges, the baseline automatically became three
months. The Board adopted this minimum period for administrative discharge
cases to reflect the fact that the military authorities had determined these
persons' offenses did not warrant the more serious consequences of a court-
martial. This approach plus the three-to-one credit for confinement, served
to establish an equitable starting point for the different categories of PCB
GERALD
E.31
applicants.
In comparison, both DOD and DOJ used 24 months baselines. Both these programs
acted pursuant to the explicit dictates of the Presidential Proclamation 4613.
For Justice Dept. applicants, section 1 of the Proclamation stated:
"The period of service shall be twenty-four months, which may
be reduced by the Attorney General because of mitigating circumstances. "
Concerning the DOD Program, the Proclamation, in section 2, provided:
"The period of service shall be twenty-four months which may be reduced
by the Secretary of the appropriate Military Department, or Secretary
of Transportation for members of the Coast Guard, because of mitigating
circumstances.
11
The Board's approach was possible because both the Proclamation and the
Executive Order gave the Board sufficient flexibility in determining appropriate
lengths of alternative service. The starting point of 24 months was not made
mandatory for US.
1/ Because of the inordinately large number of administrative discharge
cases with 3-month baselines, our average baseline figure was
.
If we look only to the cases of persons convicted of military or
civilian offenses, the average baseline is
.
Interestingly, the
military sentences for AWOL and desertation were significantly lower
than those imposed by feferal courts for draft evasion convictions.
E.32
In each of the three programs the baseline, or starting period, did not
necessarily represent the actual period of alternative service to be assigned
the applicant. All three programs, in accordance with the President's desire,
created mitigating factors to reduce the baseline. The Presidential Clemency
Board because of our reduced baseline, also used aggravating circumstances
to raise the baseline in certain cases. The baseline was a mathematical
application of several basic principles. Although it provided an equitable
starting point, the major determinants in every case were the aggravating and
mitigating circumstances.
AGGRAVATING AND MITIGATING FACTORS
The criteria we used were always established and amended by vote of the
full Board itself. Our criteria were first formally published in the Federal
Register on November 27, 1974, 2/ and comments were solicited from various
organizations and individuals with an interest in the clemency-ammesty issue.
There were over 40 responses. Since November of 1974, our regulations have
been amended twice to reflect changes and additions to the factors. (The
regulations of the Board are published verbratim in Appendix
).
There was considerable expansion of the aggravating and mitigating circum-
stances over the course of our work. The majority of these additions and
mofifications occured with respest to the military applicants. After the
Board's public information program, we discovered that the majority of our
applicants were former servicemen whose absences were not explicitly unrelated
to the Vietnam War. It did not take us long to realize that a fair evaluation
of these cased required additional aggravating and mitigating factors which
2 / 39 FR 41351-(1974)
E.33
took into account the applicant's entire military record. An examination of
our amendments to the rules shows that we went from seven to twelve aggravating
circumstances and from eleven to sixteen mitigating circumstances. All but
one of these additions were exclusively applied to military cases. 3/
The Board examined its first cases beginning in October 1974, At first,
we applied the factors subjectively. However, it soon became clear that we
were not evaluating the cases in a consistent manner, and each of us was not
aware how other members were assessing the cases. After we had tentatively
decided
The criteria for the DoD clemency program were established in a
memorandum dated September 17, 1974, from the Secretary of Defense
to the Secretaries of the Military Departments. The criteria for
the DoJ program were set forth in a directive dated September 16,
1974, from the Attorney General to all United States Attorneys.
Both of these programs had a catch-all provision for other or
future criteria. In each case, the other two phases followed
the suggested list of factors set forth in the Proclamation.
E.34
a few dozen cases, we asked the staff to compare our results. This exercise
demonstrated to us that we had to be more specific and controlled in our
work. We imposed a more rigorous set of guidelines on ourselves there-
after, making certain that Board members were in general agreement on the
presence or absence of aggravating and mitigating factors before weighing
them and coming to a conclusion.
Once the Board had discussed and agreed on the factors present in each case,
each Member expressed his or her view on the appropriate result. To channel
our decisions, we agreed to increase or decrease the base-line by three-month
intervals. If the aggravating and mitigating factors were of equal weight,
we would leave the base-line standing. If the weight came down more on one
side, the base-line would be changed by an increment of those months. Where
the factors on one side were very clear-cut, we moved by a double group, or si
six months. In unusual cases of aggravation, we would increase the base-line
by 9 months. By general agreement, the Board decided that a maximum period
could be recommended if that was the alternative to a no-clemency decision.
Of course, in particularly deserving cases the base-line could be reduced
to zero and immediate clemency recommended.
The judgment process was, of course, different for each of us. Because of the differ
ent weight we accorded to various factors and combinations of factors. This
was not only unavoidable, but desirable. The President had deliberately
decided to appoint an advisory committee composed of members with differing
experiences and viewpoints, rather than the alternative of organizing the
task to a single individual, such as the Pardon Attorney in the Justice
GERALD R
GERALD
Department. We clearly wanted this phase of his program administered in a
E.35
unique way. We expected the give and take that was inevitable in a body
impossed of pressures with strong and differing values. Dissenting members
asked to have their disagreement noted formally for the record in very few
instances.
On only a few occasions was a case referred to the President with the division
of the Board noted.
The factors we considered fall into 4 major categories. First, we examined the
reason for the offense, which could involve for example, the presence or absence
of conscientious feelings, an improper or questionable denial of draft exemption;
on the part of an applicant, or a lack of mental or physical or education capacity
to appreciate his obligations; or combat stress or personal problems which con-
tributed to the offense.
Second, we examined the circumstances surrounding the offense: For example
whether he used force in the commission of his offense, and, for military cases,
whether he had previous absences or a particularly long period of AWOL.
Third, we examined the individual's overall record. For military cases, we
looked to see if he had served in Vietnam, whether he had volunteered, whether
he had decorations or an unusually good record before the offense, whether he
had been wounded or disabled, how long he had served creditably, or if he had
other bad marks in his record, and whether the absence had occurred in the war-
zone or after orders to go to Vietnam.
PALD
E.36
For civilian cases, we looked to see if he had violated probation or parole,
whether or not he had completed alternative service, and whether the outside
record showed service in the public interest or, conversely, other felony
convictions.
Finally, we took into account any false statements made by the applicant to
the Presidential Clemency Board, and where pertinent, we sometimes considered
the individual's physical or psychological ability to perform any period of
alternative service.
The following pages discuss each of the factors in turn, explaining why we
thought them important, what relative weight we gave each, and what circum-
stances we applied them to. 4 /
Civilian Cases: The wide diversity of situations made it impossible to apply
any one stereotype to the civilian applicants, so we found it necessary to
examine several criteria in order to get a complete picture of the case. The
reason for the offense was our greatest concern, but we also considered certain
other circumstances of an applicant's offense. By examining the applicant's
service to his community and the circumstances surrounding his applicant, we
were able to focus on other considerations which might have made him more or
less deserving of clemency. In many cases, an applicant's draft offense was
the only discreditable incident in his life.
(1) Reasons for his offense:
Probably the most important question we could ask about an individual
was why he committed his offense. On the basis of the applicant's statements
4
/
In appendix
,
we have reprinted the memo distributed to Board
members and staff which lists the various factors, and gives illustra-
tions of the different fact situations which qualified under each factor.
E.37
and official records we considered whether or not his motivation for com-
mitting his draft offense was conscientious or selfish.
We were predisposed to be clement in cases where there was evidence
that applicant acted for conscientious reasons or had been denied con-
scientious objector status (or any other classification) on narrow or improper
grounds. We reasoned that had the applicant been granted his deferment or
examption, he would not have been convicted of a draft offense in the first
place. In about one-fifty of our cases, such a denial was clearly one of the
reasons for an applicant's offense.
We also realized that a civilian applicant's offense might have been
explained by lack of education or capacity to understand his obligations
and available remedies, by personal or family problems, or by some mental or
physical condition. Such an explanation applied more ofter to our lower-income,
less articulate applicants.
When we did not find a reasonable justification for the offense, we
tried to discern whether the applicant committed his offense for selfish or
manipulative reasons. Usually, there was evidence to substantiate this con-
clusion. Where there was not, we looked at the inferences which could be
drawn feom the case, although we never gave such an inference the same weight
as direct evidence.
Brief descriptions of the individual aggravating and mitigating circum-
stances which were considered as reasons for the offense are offered below:
Evidence that Applicant Acted for Conscientious Reasons: (Mitigating Factor #10)
A great many of our civilian applicants committed offenses out of sincere ethical
or religious beliefs. Most conscientious objectors clearly fall into this cate-
gory.
FORD
CERALD
E.38
(No. 2742) While in college, applicant came under the influence
of and actually worked with a group of Quakers. It
was then that he developed conscientious objections
to the war.
We were not concerned whether applicants had previously filed for C.O. status
because some applicants did not know they could apply. Others who opposed
only the Vietnam War did not bother to file C.O. claims since the courts have
determined that a sincere objection to a specific war does not qualify for C.O.
5/
status.
(No. 9157) Because of the applicant's beliefs that peace among
human beings is of the ultimate necessity, he became
involved in anti-war demonstrations.
Several religions such as the Quakers, Brethern, Black Muslims, and Jehovah's
Witnesses fell into this category. The Jehovah's Witness cases were particular-
1y distressing to the Board. Members of this religion consider the Selective
Service System as part of the military process and do not feel they can act on
a Selective Service direction to perform alternative service and still be true
to their faith. They do accept alternative service when ordered by the courts.
We found it disturbing that persons with sincere and legal C.O. beliefs had to
suffer a criminal conviction and sometimes even imprisonement, because the law
is imperfect.
The Board found this factor in ( %) of its cases. Barring the presence
of some especially aggravating factor, such as another serious felony convic-
tion, the Board generally recommended an immediate pardon. It did so because
a majority of the Board was of the opinion that this was the classic circum-
stance which the President had in mind in establishing the program.
Denial of C.O. Status on Grounds Which are Technical, Procedural, Improper,
or Subsequently Held Unlawful by the Judiciary: (Mitigating Factor #11)
Some applicants had their C.O. claims denied on grounds which were
5/
Gillette V United States,
U.S.
(
)
E.39
subsequently held unlawful by the Judiciary. Prior to the Welsh case, 6 /
a C.O. was required to base his beliefs on religious grounds. In Welsh, the
Supreme Court held it was sufficient if the C.O. claim was grounded on sincere
ethical and moral beliefs. Although the court decision was not retroactive,
we felt it only fair to give credit to an applicant who reveived a conviction
simply because he was brought to trial before Welsh. We also looked favorably
upon applicants whose C.O. request had been denied on purely technical or
procedural grounds.
(No. 14) Applicant applied for C.O. status after his student
deferrment had expired. Applicant opposed the Vietnam
War on an ideological basis, and he sincerely believed
he was a conscientious objector. He did hospital work
to wupport his beliefs, but he failed to comply with
time requirements for status changes under the Selec-
tive Service Act. Applicant's request for C.O. status
was denied; consequently, he refused induction.
We found this factor in ( %) of our cases. Here, too, it ordinarily resulted
in immediate clemency, since we reasoned that had the C.O. status been granted,
no offense and thus no conviction would have occurred.
Procedural or Personal Unfairness: (Mitigating Factor 8)
In civilian cases, this circumstance normally applied where
an applicant was denied a Selective Service deferment or exemption or the right
to apply for one, for reasons which appeared to be arbitrary or unfair. We were
careful not to second-guess the local boards, and so did not apply this factor
unless it was evident that the deferment or exception would not probably have
been granted. Except for the questionable decision by their local board, such
applicants would have been deferred or exempted from the draft and hence guilty
of no draft offense. The deferment or exemption denied could have been for
physical disability, hardship, or any other type of classification.
6.1
E.40
(No. 9421) Applicant was denied a hardship deferment solely
on the grounds that he had applied after receiving
induction orders. Applicant's father had both
brain damage and a drinking problem which might
have qualified him for a hardship discharge.
In these cases, the Board applied the spirit of the clemency process to discount
technical bars to deferment which courts are not free to ignore. Orginally the
Board did not distinguish between this factor mitigating factor #10 and - im-
proper denial of C.O. status. In its amended regulations of March 21, 1975,
they were separated because the Board found the latter circumstance particularly
significant in its determinations.
Mental or Physical Condition: (Mitigating Factor #2)
Generally, persons with serious mental or physical disability
received deferments or exceptions, and so they did not often come before us.
However, there were cases such as these:
(No. 4493) Applicant refused to report for a physical examination.
He claimed he had a disfiguring physical ailment which
would subject him to embarressment if he were required
to submit
7
/
40 FR 127663
E.41
to an examination before several other persons. Although
applicant's attorney maintained that such ailment should
qualify as a complete physical exemption, applicant's
appeal for change of 1-A status was denied.
Lack of Sufficient Education or Ability to Understand Obligations or
Remedies Available Under the Law: (Mitigating Factor No. 1).
In civilian cases, we looked to an applicant's IQ scores and
educational level as an indication of his ability to understand his
obligations.
(No. 83) Applicant has a sixth grade education and a Beta IQ of
49.
Evidence of retardation or permanent learning disability created a
presumption that applicant had difficulties in coping with his
environment. Likewise, we recognized the less severe but still
significant problems faced by applicants with low educational levels
and cultural and language difficulties.
(
)% of our civilian cases
presented instances of particularly low mental capacity or education-
al level, as compared with ( )% in the military cases. Barring the
presence of serious aggravating factors, the existence of a strong
Mitigating Factor No.1 or Mitigating Factor No. 2 resulted in a
substantial reduction of the baseline and very often a recommendation
of immediate clemency.
Personal or Family Problems: (Mitigating Factor No. 3)
Many of our civilian applicants had emotional, financial,
marital, family, or other personal problems severe enough to have
caused them to commit their draft offenses. Such as:
(Case No. 1477) Applicant told the investigating F.B.I. agent
that he failed to report because his mother
was suffering from arthritis, was unemployable,
and dependent upon him for her financial,
physical, and emotional well-being.
E.42
Evidence That Applicant Committed Offense for Obviously Manipulative
and Selfish Reasons: (Aggravating Factor No. 5).
This circumstance was used to indicate that a civilian applicant's
reasons for his offense were neither conscientious, justifiable, or
excusable. It applied in a wide range of factual situations and
reasons, usually ones of personal convenience or whim.
(No. 1036) Applicant admits that he never gave much thought
to his feelings about war until he received his
induction notice. He was given the opportunity
to serve as a non-combatant, but admits that he
procrastinated until he was no longer eligible.
Superficially conscientious motives sometimes, upon further investi-
gation, proved to be selfish and manipulative.
(No. 29)
Applicant's parents reared their children in the
Moorish faith. The Muslim faith was the basis
of the applicant's refusal to be inducted.
Following high school, applicant became
associated with a group of other Muslims, who
because of their delinquent ways, were known
as Outlaw Muslims. While a part of this group,
he participated in a bank robbery.
The Board did not necessarily deny clemency when this factor was
present, but it did consider it one of the most serious aggravating
circumstances. The Board believed that the President intended to
give these individuals a second chance if they showed they were
willing to earn their way back. The presence of this factor generally
resulted in increasing an applicant's base-line period. The Board
found A-5 in ( )% of the civilian cases. In rare civilian cases,
where no evidence of reasons for an applicant's offense could be
found or inferred, we applied a technical or weak A-5. However, such
an inference was only mildly aggravating to an applicant's case.
(2) Circumstances of the Offense
Because civilian offenses consisted basically of a failure to
perform a specific act, the only pertinent circumstance of the offense
E,43
was whether applicant surrendered to or was apprehended by the
authorities before his trial. We did not weigh this factor heavily,
and we ignored it altogether if there was no clear evidence about it
in the record. It had importance only in marginal cases.
Voluntary Submission to Authorities: (Mitigating Factor No. 11)
If an applicant voluntarily surrendered to authorities before his
trial, we interpreted this as an indication of good faith acceptance
of the consequences of his act. Since we looked at the applicant's
ultimate intentions, it was immaterial whether the applicant was
formally arrested.
(No. 1407) Upon notification by his parents that a warrant
for his arrest was about to be issued, he
submitted himself to the U.S. Marshal in the
locale where he was employed.
Nor was it necessary that the applicant physically present himself at
a police station. It was sufficient if the applicant himself notified
the authorities of his whereabouts.
(No. 4563) Applicant failed to keep the Draft Board informed
of his address from 28 Oct 69 to 8 Mar 71. He
informed the Draft Board of his address on 31 May
72 and was arrested 21 Jun 72 without offering
resistance.
Apprehension: (Aggravating Factor No. 12)
If the applicant was apprehended by authorities, this created
the presumption that the applicant did not intend to cooperate with
either Selective Service or the judiciary.
(No. 2848) Applicant was arrested on June 19, 1968, and
transported to the induction center. He
FORD
refused to be inducted and left the center.
He was rearrested December 21, 1968.
The circumstances applied, although not as strongly, in cases where the
applicant was arrested but did not willfully evade authorities.
E.44
(No. 1542) Applicant was aware that he was being sought by
authorities after his indictment in July 1973
but did not attempt to evade apprehension. He
was arrested in January 1974.
For a period, the Board only considered whether an individual had
surrendered. Because some Board members rightly pointed out that it
was only proper that we also note apprehension as an aggravating
circumstance, this factor was added. The new factor only made explicit
a circumstance which the Board had always taken into account, and so
no problems of inconsistency were raised. The Board noted this
circumstance of the person's apprehension whenever it had information.
However, this factor was generally not weighed heavily and it had
8/
importance only in marginal cases.
(3) Other Activities in the Community
We were not exclusively concerned with a reexamination of an
applicant's offense. We were also interested in the applicant's
conduct in his community prior, during, and after his draft offense.
His behavior could indicate the extent to which an applicant had on
his own, earned reconciliation with his community. For example, an
applicant's previous public service demonstrated his intent to be a
contributing member of the community and indicated that his offense
did not reflect a total lack of civic responsibility. Conversely,
other adult convictions, any prior refusal to fulfill alternative
service, or a violation of probation or parole reflected his
disregard for the law, the rights of others, and the community in which
8/ The Board viewed any attendant use of force in the commission of
an offense as a serious factor. A review of civilian cases has
disclosed no instance in which this factor was found.
GERALD
E.45
he lived. They caused us to question an applicant's willingness to
fulfill his obligations as a citizen and, hence, his good faith in
applying to us.
In evaluating an applicant's impact upon his community, we
specifically considered the following circumstances:
Employment and Other Activities of Service to the Public:
(Mitigating Factor No. 7)
We looked with favor upon any work of benefit to the community,
whether performed as alternative service or on a condition of
probation. Any work contributed voluntarily was particularly
appealing.
(No. 3258) As a condition of probation, applicant did
volunteer work for a local church under the
supervision of the pastor. He also
volunteered his time to help impoverished
potato farmers harvest their crops.
We included any public service performed before or after an applicant's
draft offense.
(no. 583) Applicant has spent the bulk of his time, in and
out of school, teaching handicapped and impover-
ished children.
Other Adult Convictions (Aggravating Factor No. 1)
If a civilian applicant had committed any non-draft-related offense
for which he received a felony conviction, we questioned his basic
worthiness to be awarded clemency by the President. Whether it
occurred before or after his draft offense, other criminal behavior
by the applicant hardly seemed consistent with his desire to earn
clemency. Only a small percentage of our civilian applicants had been
convicted of felonies involving violence (rape, armed robbery, and
R.FCR
assault).
GERALD
E.46
(Case No. 2407) In addition to his draft offense, this
civilian applicant had three other felony
convictions: sale of drugs; possession
of stolen property, assault, abduction,
and rape.
These cases normally resulted in a no clemency disposition absent any
strong mitigating factors. Others had committed less serious
offenses, and we were prepared to consider granting clemency in their
cases.
(Case No. 1286) This civilian applicant was arrested for
possession of barbiturates, after which
he jumped bond and assumed his wife's
maiden name. He was subsequently arrested
for his draft offense, extradited, and
convicted on the charge of possessing
barbiturates.
Arrests, trials ending in acquittal, misdemeanors, juvenile
convictions, or convictions later set aside were not considered
by the Board and we directed the staff not to bring this kind of
information to our attention.
The problem of how to handle cases in which the civilian
applicant had committed another serious offense was perhaps the
most controversial issue we faced. At the outset, there were two
diametrically opposed views in the Board. One Board member in
particular argued that the President's program was designed to
offer clemency with regard to draft offenses only. He believed
that the Board should disregard any offenses, no matter how
serious, committed after the offense which qualified the
applicant for the program.
Two Board members took the position that any unrelated felony
FOR
conviction should result in denying clemency in all but the most
unusual circumstances. They believed that the commission of
BERALD
E.47
another offense was sufficient evidence to show that the individual
was unworthy of a Presidential pardon.
The Board recognized that the President had given us a very
broad mandate. Under the terms of the Proclamation and Executive
Order, it was free to reach any reasonable conclusion in this issue.
Although either of these two positions was a reasonable interpretation
of the President's intentions, the Board decided it would take an
intermediate position and would weigh each case on its own merits in
accordance with the President's desire for a case-by-case determination.
As a general matter, the Board viewed felonies involving personal
violence as sufficient reason to deny clemency. Felonies involving
property were weighed together with the presence of strong mitigating
factors. Unless the Board had strong reason to doubt the guilt of an
applicant -- and this happened only rarely --- the presence of this
factor invariably resulted at least in a substantial increase in the
amount of alternative service. Because of the seriousness of its
decision, the Board brought the question to the special attention
of the President. It made clear that some members believed clemency
was never appropriate in these cases, and that the Board was acting
by a divided vote. In a number of instances, the decision to grant
or deny clemency was by a one or two vote margin.
Of all no clemency cases ( )% had this factor present. And
where the factor was present, the average recommendation was
SERALD
months. However, this factor appeared much more often in military
cases. Only ( )% of the civilian cases had Aggravating Factor No. 1.
Prior Refusal to Fulfill Alternative Service: (Aggravating Factor No. 6)
To earn clemency, we usually asked our applicants to perform
alternative service. Therefore, we were skeptical about the good faith
E.48
of applicants who had not fulfilled an earlier promise to perform alternative
service as a condition of CO status. We interpreted this as evidence that
an applicant might not be sincere in his intention to satisfy his obligations
to the Nation. We found this factor in ( )% of our civilian cases.
(No. 55) Applicant was classified 1-0 in 1966 and was ordered to
report to his local board for instructions on how to
proceed to an alternative service job. He failed to
appear at the local board and was convicted in 1973 on
a guilty plea for failure to report for alternative
service.
Occasionally, applicants failed to perform court-ordered alternative service
imposed as a condition of probation or parole.
(No. 560) Applicant was ordered to report for induction. He
failed to submit and was sentenced to five years
probation, two years of which were to be in work
of National importance. After working for one year
at a Pennsylvania hospital, the applicant resigned
his job and notified the sentencing judge that he,
in good conscience, could no longer cooperate and
requested revocation of his probation. The judge,
therefore, revoked probation and gave the applicant
a one-year jail sentence. He was released after
serving 10 months in prison.
We did look differently at Quakers, Black Muslims, or Jehovah's Witnesses
who refused on religious grounds to fulfill alternative service ordered by
Selective Service, although they were willing to accept judicially-imposed
alternative service. We did not wish to penalize them for their conscientious
beliefs. We ignored their failure to perform alternative service at the
direction of Selective Service, or refused on other than religious or
conscientions grounds:
(No. 779) Applicant was classified 1-0 because of his religious
GERALD
beliefs as a Jehovah's Witness. When offered alternative
civil employment, he engaged in dilatory tactics and
made token appearances on the job.
Violation of Probation or Parole: (Aggravating Factor No. 7)
Similarly, we questioned an applicant's good faith in applying to us
for clemency when he earlier had not cooperated with the judicial system
E.49
when it was trying to be clement with him. However, we were only concerned
about any violation of probation or parole serious enough to result in
revocation.
(No. 1023) Applicant was convicted of failure to report for
induction and sentenced to five years probation. While
on probation, he was arrested and pled guilty to state
felony charges. His federal probation was revoked
following his state conviction.
(4) Circumstances Surrounding the Application
Finally, we were concerned whether a civilian applicant had the ability
to find and hold alternative service employment. If his present personal
or family problems or his mental or physical condition would have impaired
his ability to perform alternative service, we saw no purpose in imposing such
9/
an extra burden on him.
The one exception to this general rule pertained
to applicant's presently incarcerated for other offenses, who were expected
to perform alternative service upon their release from confinement.
While we did not have any specific mitigating factor on this point, we
did apply several factors in this context. For example, we applied the
mental or physical condition factor in the following case:
(No. 74)
Applicant states that he started drinking when he was
11 years old, feels that he has had a serious drinking
problem, has attempted to secure assistance, but was
not able to follow through. Most of his juvenile and
adult offenses appear to be related to excessive
drinking.
Two of DOJ's mitigating circumstances were closely related to this
problem: DOJ (2) "Whether the applicant's immediate family is in
desperate need of his personal presence for which no other substitute
could be found, and such need was not of his own creation," and DOJ
(3), "Whether the applicant lacked sufficient mental capacity to
appreciate the gravity of his action."
E.50
False Statement by Applicant to the Board (Aggravating Factor # 2)
We were also concerned about any false statements which an applicant
made to our Board, since this was a clear indication of his unwillingness
to cooperate with us in a spirit of openness and honesty.
We looked only for a willful misrepresentation of a material fact. We
were not concerned about an applicant's false statements to draft boards or
courts, unless he repeated them to us. We specifically warned applicants
about this and in our application materials, we printed in capital letters:
"ANY FALSE STATEMENT TO THE BOARD WILL BE CONSIDERED AN AGGRAVATING FACTOR
HIGHLY UNFAVORABLE TO YOUR CASE."
Because the Board did not require applicants to submit information to us
under oath, and we had generally no means of independently weighing information,
the Board relied heavily on the good faith of its applicants. We found no
instance of this occurring prior to our deciding the case. In one instance,
after the President had granted an immediate pardon, we were apprised of evidence
which indicated the applicant may have deliberately lied to us. The case was
referred to the DOJ for appropriate action. Because the pardon had been
accepted, and therefore was an accomplished fact, the Board did not have the
legal power to reverse its recommendation.
Military cases: Military applicants presented several issues we did not
confront in civilian cases. First, there was a much greater range of reason
why military applicants went AWOL. Second, military offenses by their very
nature involved more factors than civilian offenses which were failures to
perform a single act.
E.51
For example, military applicants could have committed one offense or many.
They could have deserted under fire, or they might have left to get medical
attention for combat injuries. These and many other factors were clearly
related to an individual's worthiness for clemency.
The biggest difference between civilian and military applicants
was that the latter had an obligation arising from taking his military oath.
This was a double-edged sword. On the one hand, they had assumed a serious
obligation of national service; on the other hand they had not, to their
credit, initially rejected their obligations. Therefore, in addition to this
criteria we considered in civilian cases, we examined very closely the
applicant's service to the military.
(1) Reasons for the Offense
There were many reasons why soldiers, sailors, airmen, and
marines went AWOL or deserted. Some did, in fact, commit their offense for
conscientious reasons or because their request for C.O. status had been
denied. A greater number committed their offense either because of military
treatment they considered unfair or because of personal or family problems.
Occasionally, an applicant's mental or physical condition, or lack of mental
ability, underlay his offense. We examined these reasons to determine if an
applicant's offense was understandable under the circumstances. We were
especially concerned about cases where an offense appeared to be the result
of mental stress caused by combat. As with civilians, we looked for selfish
reasons for a military applicant's offense if he had no apparent justificable
reason for it. We looked with extreme disfavor upon any evidence of
cowardice on the part of an applicant who deserted in a combat situation or
avoided an overseas assignment.
E.52
Evidence that Applicant Acted for Conscientious Reasons:
(Mitigating Factor #10)
We applied this circumstances when a military applicant committed
his offense out of sincere opposition to war. We did not require that an
applicant have applied for in-service CO status or that he otherwise fit
the traditional consicientious objector mold.
(No. 9838) Applicant returned to U.S. from Vietnam with orders
to Ft. Knox to train armor crewmen going to Vietnam.
He did not want this assignment because he had "come
not to believe in what was going on over there".
He said, "I was not exactly a conscientious objector
because I had done my part in the war, but I had decided
that I could not train others to go there to fight.
(No. 3285) Applicant decided he could not conscientiously remain in
the Army, and he went to Canada where he worked in a civilian
hospital. According to a statement prior to his discharge,
applicant states "In being part of the Army I am filled with
guilt. That guilt comes from the death we bring, the tre-
mendous ecological damage we do, the destruction of nations,
the uprooting of whole families plus the millions of
dollars wasted each year on scrapped projects and abuse
of supplies. I am as guilty as the man who shoots the
civilian in his village. My being part of the Army makes
me just as guilty of war crimes as the offender".
We found considerably fewer instances in military cases where articulate
moral reasons explained the offense. This factors was found only in ( %)
of the military cases, as compared with ( %) of civilian cases.
Denial of Conscientious Objector Status on Grounds that Are Technical,
Procedural, Improper, or Subsequently Held Unlawful by the Judiciary:
(Mitigating Factor #11)
Like the Selective Service System, the military has procedures
for discharging or reassigning men who come to hold conscientious objector
beliefs. Sometimes, however, these procedures were misapplied.
(No. 10402) For a year and a half after he was drafted, the applicant
tried to obtain C.O. status, because he did not believe
in killing human beings. He found his aversion to taking
E.53
human life to be persuasive. The applicant is minimally
articulate but states that even if someone was trying to
kill him, he could not kill in return. When he had
exhausted the applications for C.O. status and was
scheduled for Vietnam, he went AWOL.
(No. 7506)
Applicant was inducted in 1967. Applicant applied for
C.O. status in 1969 and was given orders for Vietnam
before his application was reviewed. He complained to
his commanding officer who ordered him to Vietnam never-
theless. Applicant then went AWOL to seek outside help.
He was advised by civilian counselors that he remain AWOL
for at least 30 days so that he would be able to bring
to the attention of a court martial the illegality of
ignoring the C.O. application. The court martial refused
to enter copies of the C.O. application on the grounds
that the applicant's copies could not be introduced into
evidence because they were not certified.
If the applicant had been unjustly or unfairly denied C.O. status, we consider
this a prima facie reason for the offense. Rad the applicant been granted
C.O. status, he would not have committed his offense. The factor appeared
in ( %) and we found it highly persuasive.
Personal or Procedural Unfairness: (Mitigating Factor #8).
Because of the military's 24-hour-a-day influence on its members, there are
inescapably more opportunities for personal or procedural unfairness to
military applicants than to civilian applicants. Understandably, in a large
organization like the military, there are occasions when irregularities occur.
The Board was careful in evaluating apparent procedural or personal unfairness
because it did not feel it could properly second-guess the actions of military
authorities. However, the Board was also conscious that it was exercising
a clemency function, and so could give more weight to evidence of procedural
unfairness than the military authorities had. The following examples of
personal or procedural unfairness contributed to the reasons for an applicant'
AWOL or disrespect for military regulations. Of course, we were aware that
the legitimate demands of the military could outweigh the applicant's persona
E.54
needs if this were the case, we looked with less favor upon an applicant's
unwillingness to accept some personal inconvenience. This factor appeard
in ( %) of the military sample we examined.
(a)
Irregularities resulting in the induction or enlistment of an
applicant who should never have been in the military in the first place:
These cases merited serious consideration by the Board. We found examples
of persons with disqualifying low mental capacity or physical or
psychological infirmities serious enough to question why they had been accepted
The Board relied heavily on those members who had served in Vietnam in making
these judgments. The result was usually a recommendation of immediate clemency
(No. 2462) Applicant was classified I-Y and then reclassified 4-F.
Applicant states that he enlisted with the cooperation of
his probation officer and the Army recruiter.
(No. 222) Applicant was inducted under Project 100,000. He had stated
that he had previously been rejected by the Marines and had
failed the Army's mental test, but claimed that his papers
had been changed so that he would qualify.
(b) Attempts by the applicant to resort to legitimate remedies (such as
hardship and administrative discharges, compassionate reassignments, and
emergency and regular leave) to solve his difficulties, followed by a denial
of those remedies on technical, procedural, or improper grounds:
(No. 13653) While in Vietnam applicant submitted a request for
compassionate reassignment to Puerto Rico which was denied
because the statement was not substantiated by medical
evidence. When the medical evidence was later submitted,
the request was denied because the problems were chronic in
nature. However, a 30 day leave was granted. When home
on leave, applicant discovered that his wife was mentally
ill and unable to care for their child. His parents were
also having serious emotional problems. Applicants tried
again to arrange a transfer but was told he would have to
return to Vietnam and iron out the problem there. Applicant
remained in Puerto Rico in an AWOL status.
(c) Improper denial of pay or other benefits:
5)
(No. 506)
Applicant was ordered to report to a new base for assignment
to Europe. While he was waiting at Ft. Dix, his records
E.55
were shipped to Europe. He was not paid for 45 days.
He reported that his family was having financial problems,
and he requested Red Cross help and emergency leave to deal
with the difficulty. His family was put out of their
apartment, was forced to live in their automobile, and had
no food. He traveled to the Pentagon and was reportedly
told to go home to await the results of a telegram to
Europe regarding his pay records. He called back twice,
but reportedly no one knew of his situation nor had heard
of him. He was committed to his course of action, so he
continued to stay at home, which resulted in his being
AWOL. He found a job but was still forced to declare
backruptcy.
(d) Failure to receive proper leadership, advice, or assistance:
(No. 3168) Applicant was advised to apply for a hardship discharge
and was provided assistance in filling out the necessary
forms by the Red Cross. When applicant attempted to file
the hardship discharge papers, the papers were thrown in
the trash by the First Sergeant, who also reprimanded the
applicant for being a coward. As a result of such treatment,
applicant became disillusioned with the Army and went AWOL.
In evaluating these circumstances, we looked to those Board members who had
been officers in the armed services, and especially to General Walt. Any
instance in which we found the offense caused by a failure of military
leadership was considered especially extenuating.
(e) Unfair military policies, procedures, or actions sufficient to
produce a reasonable loss of faith in our unwillingness to serve in the
military:
(No. 397)
Upon entering the Army, applicant complained of stomach
pains, and it was subsequently discovered that he had a
duodenal ulcer. Shortly thereafter, his condition worsened
and he was hopitalized for ten days. Applicant wanted to
remain on the same diet that he was on in the hospital but
this was not available at his post mess hall. He was
advised by a doctor to eat in the post cafeteria which
he did not think was right. Applicant then went AWOL.
Applicant recently suffered another bleeding ulcer attack,
which required hospitalization.
(f) Racial or ethnic discrimination:
(No. 10125) Applicant's version of his problems is that he could no
longer get along in the Marine Corps. Other marines
E.56
picked on him because he was Puerto Rican, would not
permit him to speak Spanish to other Puerto Ricans, and
finally, tried to get him in trouble when he refused to
let them push him around.
(g) Instructions by a superior to go home and await orders which never
arrived:
On a few occasions, the applicant contended that he never intended to
go AWOL, but had been awaiting orders. Most often, these statements could
not be corroborated and so were largely discounted, especially since the
excuse had probably been evaluated and rejected on the occasion of the man's
original discharge. When corroboration was evident, or other circumstances
made the claim plausible, the Board gave it considerable weight.
(No. 433)
Applicant contracted a rash and fever. He went to Fort
MacArthur for medical treatment and was ordered to stay
at home until he had recovered. He was told to expect
orders following his recovery. No new orders were received,
so he contacted his Congressman to find out what had
happened. He received a reply that the Army had no
information about his movement. He contacted an Army
Inspector General following that, but never heard about
his orders. There is some evidence he thought he would
have been eligible for a medical discharge related to
curvature of the spine.
E.57
(h) Inducing or misleading the applicant into requesting a discharge
in lieu of court-martial, such as by promising him a general discharge:
The Board came across many instances in which an applicant had apparently
assumed or been led to believe that he would get a General Discharge if he
waived his rights, or that his Undesirable Discharge would be converted auto-
matically to a General Discharge after a period of time, usually six months.
The number of these instances, especially involving persons with lower IQ's
and education, suggests that servicemen do not always understand the consequences
of the administrative discharge they are accepting.
(No. 4603) A summary statement in applicant's file indicates he signed
a letter requesting discharge in lieu of court-martial and
was advised of the implications. Applicant states he did no
such thing but that his commanding officer had told him to sign
some papers. His records contain no copy of either a letter
requesting discharge or statement acknowledging that he had
been advised of his rights and the implications of the discharge.
Applicant submits that he would have demanded a trial instead.
He appealed his discharge within two days of receiving it.
Evidence of Mental stress caused by combat - Mitigating Factor #12
We looked with particular sympathy on the cases of Vietnam veterans whose
combat experiences had been so taxing or traumatic that their subsequent absence
offenses could be attributed at least partly to those esperiences. Their absence
offenses were often simply the consequence of the fulfillment of their military
responsibilities--not the avoidance of those responsibilities, as was true for
most of our other military applicants. We encountered some striking examples
of this "Vietnam Syndrome, with applicants turning to alcohol, drugs, or other
erratic behavior to cope with the present or memories of the past. We encountered
a number of instances in which servicemen returning from combat were unable to
adjust to stateside garrison duty with its emphasis on spit-and-polish. In some
cases, combat veterans felt they were being treated like recruits by superiors
who had not been to Vietnam. In the absence of seriously aggravating factors,
E.58
cases in this category usually received immediate clemency. This factor appeared
in ( %) of our cases, and led to an immediate pardon ( %) of the time. This
group comprised the candidates that we considered for the special recommendation
of veterans' benefits.
(No. 4250) When applicant arrived in Vietnam he was a young E-5, without
combat experience. He was made a reconnaissance platoon leader,
a job normally held by a commissioned officer. Applicant started
going out on operations immediately; to accomplish this mission
he began to take methadrine to stay awake. He noticed the meth-
adrine making a marked change in his personality; he began jumping
on people, his nerves were on edge. He started to take opium
tinctura to counteract this effect, "to mellow him out", and
became addicted. After Vietnam he was transferred to Germany
where he kept his addiction secret, although the problem was
beginning to grow out of control. Applicant was sent bact to
the U.S. with a 45 day leave authorized. Applicant planned to
enter a private German drug abuse clinic within 3 to 4 weeks but
the clinic could not accept him immediately. He made the
decision to wait in an AWOL status rather than go back as an
addict. He was continuously put off until he was finally appre-
hended by German police.
(No. 188) During his combat tour in Vietnam, applicant's platoon
leader, with whom he shared a brotherly relationship, was killed
while the latter was awakening applicant to start his guard duty.
The platoon had set up an ambush point because they had come upon
an enemy comples, and the platoon leader was mistaken for a
Viet Cong and shot by one of his own men. This event was extremely
traumatic to applicant, and he experienced nightmares. In an
attempt to cope with this experience applicant turned to the use
of heroin to which he became addicted. During his absence, he
overcame his drug addiction only to become an alcoholic. After
obtaining help and curing his alcoholism, he turned himself in.
(No. 5233) Applicant participated in 17 combat operations in Vietnam. He was
medically evacuated from Vietnam because of malaria and an "acute
drug-induced brain syndrome." That his behavior reflects mental
stress caused by combat can be inferred from the fact that applicant
commenced his AWOL offenses shortly after being released from
hospitalization and that subsequent to his discharge he had either
been institutionalized or under constant psychiatric supervision.
Mental or Physical Condition. Mitigating Factor #3. Any mental problem or
physical disease, injury or disability serious enough to have caused personal
hardship or incapacity may well have contributed to an applicant's offenses in the
military. Alcoholism and drug addiction were included in this factor because they
created problems beyond an applicant's control which occasionally contributed to
E.59
his offense. These cases were not treated appreciably different from their
civilian counterparts. We found this factor in ( %) of our military cases.
(No. 194) While applicant had been on leave, he was hospitalized for treat-
ment of infectious hepatitis had been made by a civilian doctor,
the doctor had told him that "his resistance was low and that he
would not live to be 30 years old". Applicant's shock and fear
at this statement, coupled with the realization that, if true,
he had only a relatively short time to live, precipitated his
absence. Defense exhibits admitted at trial confirm applicant's
contraction of viral hepatitis and the fact that he was treated
at a veterans' hospital after his visit to the civilian doctor.
The physical or mental problems could have been related to the quality of medical
treatment received by the applicant while in the military.
(No. 184) Applicant had a history of severe migraine headaches at times
of tension and stress. He requested medical evaluation for his
headaches during basic training and advanced infantry training.
He did not receive medical attention. He then went AWOL.
Lack of Education or Ability to Understand Obligation or Remedies Available
Under Law - Mitigating Factor #1. In some cases, the applicants' intellignece was
an actual cause of his offense.
(No. 14813 Applicant's has a category IV AFQT score. Applicant 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.
In most cases, it was not necessarily a cause of an applicant's offense, but
it did raise some doubt about his ability to understand his obligations.
(No. 216) Applicant completed the 10th grade and quit school because he
lost interest. His GT score ensures 68 and his AFQT score is
12 (Category IV).
The Board was particularly concerned about the inordinate number of AFQT,
IV cases - those of marginal acceptability for service. While some persons
DERALD
in this group evidently could function in military life, many were unable to
shoulder their responsibilities. While not always totally extenuating, the
presence of this factor served to reduce the period of alternative service consid-
erably. The factor was found in ( %) of our military cases.
E.60
Personal or Family Problems: Mitigating Factor #2. This is traditionally
the most common reason for military absence offenses. Rightly or wrongly, many
soldiers have been placing their families above the military from time immemorial.
Reluctantly but realistically recognizing this, we looked for significant emotional,
psychological, financial, marital, or other personal difficulties faced by the
applicant or his immediate family which could reasonably explain his offense.
While the family problems always incurred our sympathy, we were mindful of the
hundreds of thousands of other men who had left their homes and loved ones and who
did not forget their duty. We were also mindful of our responsibility not to
undermine future military discipline by appearing to excuse unauthorized absences.
While the factor was given weight, only in extraordinary circumstances did we feel
family or personal problems were of such a nature as to completely excuse the
requirement for some alternative service. This factor appeared in ( %) of the
military cases.
(No. 474) Applicant states that while at his army base he received a letter
from his mother stating that his father's eyesight was failing
and the family was having financial problems as a result of his
father's inability to work. He applied for a hardship discharge,
but it was denied. He was transferred back to his home base, where
he learned by mail that his father's eye condition had worsened.
Subsequently, he left the military control and went home where
he worked continuously for a construction company.
We used a broad definition of "immediate" family.
(No.
189) This applicant, who is an American Indian, was raised by his aunt
and uncle in a small community in the South. During his AWOL
he worked for his tribe earning $2.00 an hour to support his aunt
and uncle, the latter being crippled.
and
(No. 3538) Applicant fathered a son born to a Vietnamese woman. He later
sought permission to marry her, which was denied. Two days later
he received order to leave Vietnam when he thought he had 4 months
left on his tour. After returning to the U.S., he applied to
return to Vietnam but was not sent there. He attemted to have his
Vietnamese girlfriend and his son brought to the U.S., but was told
this was impossible because he was not married to the woman. He
stated that he went AWOL in despair.
E.61
Evidence that Applicant Committed the Offense for Obviously Manipulative
and Selfish Reasons - Aggravating Factor #5. Many applicants left the military
for unjustifiable, selfish reasons. They, in particular, had not looked upon
their military obligation with the seriousness it deserved. Naturally, the presure
of this factor was weighed heavily against an applicant. We found it in ( %)
of our cases.
(No. 8410) Applicant was an infantryman in Vietnam when he went AWOL. He
was picked up in a rear area by MP's and ordered back to the field
by two lieutenants. He refused to fly out to join his company.
(No. 612) Applicant stated that he went AWOL for approximately three
months knowing that after that period of time he could come
back and request a discharge.
(No. 344) Applicant went UA the first time "just for something to do"
he left the second time because he "got involved with a woman".
The third and fourth times he- went UA were to go home and support
his family, as he was in no-pay status with the Marine Corps.
(No. 173) Applicant escaped from the stockade by fleeing a police detail.
At the time of his escape, he was serving a sentence adjudged
by a special court for previous AWOL.
Voluntary Submission to Authorities: Mitigating Factor #11. We looked
at only the last qualifying offense to determine the applicant's final attitude
towards cooperation with military authorities. This factor appeared in ( %)
of our military cases.
(Nos 9783) Applicant was a French Canadian who was drafted. He went to
Canada twice. During his second AWOL, he wrote to request a
discharge and was told he would have to return to the Army.
He did so, was charged, and requested a discharge in lieu of
court-martial.
As the focus was on the applicant's intent we did not require that applicant
physically turn himself in. It was sufficient if the applicant himself informed
the authorities, whether civilian or military, of his whereabouts.
Apprehension by Authorities: Agravating Factor #12. As with
voluntary surrender, we only examined the last qualifying offense. It was not
E.62
necessary that the applicant be apprehended specifically for AWOL. If evidence
showed that he did not willfully evade authorities, this factor carried little
weight. In the absence of any evidence at all, the Board was not obligated to
mark either voluntary surrender or apprehension. We marked it in ( %) of our
military cases.
Desertion During Combat or Leaving the Combat Zone - Aggravating Factor # 4.
When a soldier left his unit in a combat zone, he placed an increased burden on
those who remained behind and had to complete the same mission with less men.
For this reason, we considered it very serious if the applicant commenced his
AWOL from Vietnam.
(No. 7163) Applicant commenced the first of three AWOL's while in Vietnam.
He flew back to California.
(No. 5554) Applicant bought orders to return to the U.S. from Vietnam.
We were particularily harsh when the applicant committed his offense
specifically to avoid combat.
(No. 3304) Applicant felt the CO of his company was incompetent, so he would
not go into the field with his unit. He was getting nervous
about going out on an operation, as there was a good likelihood
of enemy contact. Because he said he possessed no confidence
in the new CO of his company, he asked to remain in the rear but
was denied. Consequently, he left the company area, because, in
the words of his Chaplain, the threat of death caused him to
exercise his right to self-preservation. His company was subse-
quently dropped onto a hill while applicant deserted and on that
same hill engaged the enemy in combat. He was apprehended on or
about 1400 on 5 Aug 68 while travelling on a truck away from his
unit without any of his combat gear.
We found this factor in ( %) of the military cases and ( %) of the cases
with this factor were not recommended for clemency.
Failure to Report for Overseas Assignment - Aggravating Factor # 10.
Servicemen ordered to report to Vietnam assumed an extra obligation of military
service. For every man who failed to go to combat when ordered, another had
to go in his place. Occasionally, an applicant had clearly conscientious reasons
for failing to report to Vietnam. In cases like this, we had to balance his
E.63
conscientiousness with the inescapable fact that another soldier had to be assigned
to Vietnam to replace him.
(No.
507)
After entering the Army, applicant requested removal from the
Officer Candidate School list, stating that he was opposed to
killing and did not believe in the Vietnam war. Shortly there-
after, he formally applied for a conscientious objector separation
from the service. He thereafter failed to report to a West Coast
personnel center for movement to Vietnam.
We were similarly concerned about servicemen who shirked combat obligations by failing
to return while on leave or R&R outside of Vietnam.
(No. 7377) Applicant was wounded in Vietnam and sent to a hospital in Japan
and then to a hospital in U.S. There he learned about marital
and financial problems; he was also told that he would be sent
back to Vietnam after his release from the hospital. He went
AWOL from the hospital.
Even when an applicant was merely avoiding overseas service in a non-combat area,
he still was avoiding what for many servicemen was an unpleasant duty, far away
from family and friends. We were less concerned about this type of failure to
report, however.
(No. 1364) Applicant was stationed in Thailand when he went home on emergency
leave because of his father's illness. After failing to obtain
a hardship discharge or a compassionate reassignment, applicant
went AWOL rather than report back.
We veiwed this factor as a particularily serious element in the ( %) of the cases
in which it appeared.
Sometimes an applicant went AWOL for apparently understandable reasons, but
remained away after his problems had been resolved. While this might have reflected
fear of punishment or simple inertia, we believed that a serviceman who recognized
his military duty would return as soon as the need for his absence had ended.
(No.
241) A few days before applicant was due to report to an Army Overseas
Replacement Station, his wife threatened to commit suicide unless
he promised not to report, as she was positive he was going to
Vietnam and would be killed. Applicant subsequently divorced his
first wife but did not then returned to military control.
Occasionally, an applicant's subsequent actions contradicted or detracted from
his expressed motives.
E.64
(No. 206) According to testimony the applicant met his wife, a Danish citizen,
shortly after arriving in Germany. She became pregnant and he
attemted to obtain permission to marry her. When he was unsuccessful,
he went AWOL on 14 Oct 66. After turning himself in, he was returned
to Germany and placed in pre-trial confinement. Shortly there-
after, he escaped and went to Sweden, where he applied for asylum.
While in Sweden, he had numerous arrests on thefts and narcotic
charges, received a sentence of 10 months imprisonment, and was
deported back to the U.S.
We sometimes inferred selfish motives either because applicant stated
that he had no reason for his offense or because there was no clear evidence to
substantiate a reason which warranted further explanation.
(No. 161) On 18 Sep 69 applicant went AWOL for 41/2 years. He stated that
he did not have any concrete reason for going AWOL.
(No. 1560) Applicant's explanation for AWOL is that he thought he was being
unjustly selected for an overseas assignment. The file does not
contain information either supporting or denying this feeling.
Where no evidence at all was available, to explain the offense, we joined a
weak, or "technical" factor. However, we considered such an inference to be only
mildly aggravating to an applicant's case.
(2) Circumstances of the Offense. Military absentees committed an array
of military offenses. They went AWOL for different lengths of time, from diverse
locations, and under a variety of conditions. If the applicant committed several
AWOL's or was gone for a long period of time, this was naturally more serious than
a single time, short-term AWOL. Voluntary surrender indicated cooperation while
apprehension did not. If the applicant used force collateral with his AWOL, he
showed that he was willing to risk injury to others in order to achieve his own
FO
ends. Applicants who left the combat zone or failed to report for overseas
assignment showed their lack of concern for others who depended on their presence.
Use of Force by Applicant Collaterally to AWOL, Desertion or Missing Movement:
Aggravating Factor #4. Of course, we could not condone any violence by which an
applicant effected an escape. This factor appeared in ( %) of our cases, ( %)
of which received no clemency.
E.65
(No. 3073) On two occasions, applicant escaped from confinement by attacking
a guard with a razor or knife.
Multiple AWOL offense - Agravating Factor #8. Many military applicants went
AWOL more than once, indicating an inability or unwillingness to solve their problems
after the first offense and a casual attitude towards his military duty. Interestingly,
only ( %) of our applicants were AWOL only once.
(No. 3444) Applicant received a SCM for two periods of AWOL (1 day each) and
one charge of missing movement. He then received a NJP for one
AWOL (1 day) another NJP for three AWOL's (1; 1; 10 days), and
one NJP for two AWOL's (7; 1 day). He then received a SPCM
for two AWOL's (2 months 17 days; 3 months 19 days). He accepted
an undesirable discharge in lieu of court martial for one period
of desertion (2 years; 10 months 20 days), five periods of qualify-
ing AWOL (8 days; 3 months 28 days; 1 month 2 days; 2 months 13
days' 6 months 29 days) and one period of non-qualifying AWOL (3
months 28 days). This is a total of 1 period of desertion 15
periods of qualifying AWOL and 1 non-qualifying AWOL (total of
5 years).
AWOL of Extended Length - Aggravating Factor #9. The amount of time that an
applicant remained absent reflected on the seriousness with which he viewed his
obligations and on his desire to cooperate with military authorities. We looked
at the combined length of all AWOL offenses for which he was seeking clemency.
We noted the length of time absent in each case for our information, and as a
means of comparision with the length of creditable time. the individual had served.
We gave no weight to this factor if the absence was 6 months long, only slight
weight between 6 - 12 months, and full weight for over a year. Our sample disclosed
that ( %) had short absences, ( %) moderate length AWOLs, and ( %) absences over
one year.
(3) Character of Military Experience
Normally, the military applicant had satisfactorily fulfilled a portion of his
obligation prior to his offenses and discharge. Therefore, we balanced, the other
favorable and unfavorable aspects of his military experience. Some of the factors
we considered here particularly affected our decision whether to recommend an
applicant for veterans benefits.
E.66
Tours of Service in the War Zone - Mitigating Factor # 7 A startling
percentage -- 27% of our military applicants did in fact serve in the war
zone. Many had served their country well.
(No. 5144) During his inital enlistment, applicant served as a military
policeman and spent 13 months in that capacity in Korea. He
then served two tours in duty in Vietnam, as an assistant
aquad leader during the first tour and as a squad leader and
chief of an armored car section during the second.
(No. 14514) Applicant served aboard the USS Buchanan from January 1968 to
July 1968 off the coast of Vietnam.
We gave an applicant credit for Vietnam service if he served at least 3 months
in Vietnam or was on a naval vessel off the coast of Vietnam, unless his tour
ended earlier because of his AWOL actions. Four of the DOD mitigating circumstances
fell into this context: "Length of satisfactory service completed prior to
absence", "Awards and Decorations received", "wounds in combat", and "length of
service in Sourtheast Asia in hostile fire zone". Each of these represented a
contribution to the military and could be used to lessen the period of alternative
service.
(No. 6941) Applicant served in Vietnam with the 101st airborne as a light
weapons infantryman. His tour lasted 4 months, 22 days. From
17 December 67 until 8 May 68, he returned to the United States
on emergency leave. Applicant stated that he went AWOL because
he could not face going back due to the incompetence of his
officers and the killing of civilians.
(No. 1817) Applicant served in Vietnam for a period of 2 months, 13
days. He served as a combat medic. While in Vietnam, he
broke his ankle. He was operated on and was evacuated for
rehabilitation.
Volunteering for Combat or Extension of Service while in Combat. Mitigating
Factor #13. Some applicants voluntarily accepted the risks that go with combat.
This circumstance applied when applicant volunteered for a first or subsequent
Vietnam tour, extended his tour in Vietnam, or volunteered for a combat assignment
while in Vietnam. This occured in ( %) of our cases.
(No. 9650) Applicant worked in supply and transportation in Vietnam for
32 months. He went to Vietnam in August 68. He extended
his tour until .Tan 70 when he Vietnam
E.67
In a few cases applicants had gone AWOL because they were not sent to Vietnam,
Personal Decorations for Valor. Mitigating Factor # 15. Many of our applicants
served in Vietnam with sufficient merit that they earned decorations. We recognized
the following decorations for valor. We also recognized decorations awarded by the
Vietnamese, such as the Vietnam Gallantry Cross with Palm. ( %) of our applicants
had been decorated in combat.
Service Connected Disability - Mitigating Factor # 5. Some applicants suffered
permanent physical or mental injury resulting from military duty. Some were
wounded in combat, and others injured in training. Their sacrifices required
that their AWOL offenses be viewed with a special measure of compassion.
(No. 4048) Applicant was wounded in the leg and has a permanent disability
in that one leg is 3 inches shorter than the other.
(No. 9402) The applicant, while undergoing weapons training, was injured
while operating a 155 mm Howitzer during a fire mission. He
was admitted to an Army hospital for emergency surgery which
resulted in the partial amputation ofaright middle finger.
Wounds In Combat - Mitigating Factor # 16 We gave credit if an applicant
had been wounded in Vietnam, even if his wounds were not disabling. ( %) of our
military applicants had been wounded.
(No.11013) Applicant served in Vietnam from 26 Mar 67 to 22 Mar 68, as an
infantryman and grenadier. On 12 May 67, applicant was wounded
when he found an enemy booby-trapped grenade. He told the men
in his platoon to get down but the grenade exploded in his hands
as he attempted to destroy it. He was awarded the Purple Heart.
E.68
(No. 9894) Applicant received fragment wounds to his face,
right forearm and thumb for an exploding shell while in c
in combat. He was evacuated to Japan and then to
the U.S. Upon his return to the U.S., he was re-
stricted in the type to assignments he could perform:
no handeling of heavy equipment, no overhead work,
or no pushing or pulling. He continues to complain
of numbness and pain in his right forearm and thumb.
Extended Period of Creditable Military Service: (Mitigating Factor #6)
Even those who did not go to Vietnam often gave years of
good military service to their country. We measured the amount of applicant's
military service, minus any time AWOL or in confinement, looking with greater
favor upon applicants who had at least one year of creditable service. We did,
however, recognize that an applicant who completed over 6 months of creditable
service had completed his training, begun his first duty assignment, and ten-
tatively earned eligibility for veterans benefits. Therefore, we did gave him
some credit for his service. Of our cases, ( %) were discharged with less than
6 months service. ( %) had over one year good time.
Above Average Military Conduct and Proficiency or Unit Citations
NALD
(Mitigating Factor #14)
We were also concerned about the quality of an applicant's
military service. An applicant's conduct and proficiency ratings, excluding
those poor ratings which resulted from applicant's AWOL offenses were averaged
and compared to the standards his service. However, we only gave credit for con-
duct and proficiency scores after six months of service, because the initial
ratings given in basic training were generally high and did not necessary indicate
the quality of an applicant's service. Even if an applicant did not meet these
standards, we gave him some credit for serving with a unit which earned a unit
be
citation. Ratings had toAhigh for the 5th months prior to the AWOL. Absent
either above average ratings or unit citations, we still, on occasion, gave credit
E.69
to letters of commendation, decorations other than for valor, and other
indications that applicant served well during his military service. Of our
military cases, ( %) had good records before being discharge for AWOL.
Other Adult Convictions: (Aggravating Factor #1)
As was the case in reviewing civilian applicants, we were
also concerned with criminal convictions in addition to the offense for which
clemency was offerred. We also recorded convictions by Special and General
court-martials, as well as civilian felony convictions. All told, we marked
/
this faith is ( %) of our military cases.
Violation of Probation: (Aggravating Factor #7)
Occasionally an applicant's court-martial sentence had been
suspended, and his subsequent actions caused the suspension to be vacated. This
reflected an applicant's failure to cooperate with military authorities, even
when those authorities were attemping to be clement with him.
(No. 139) Applicant received a BCD and 6 months confinement for an
AWOL offense, but the sentence was suspended for 6 months.
When applicant realized his sentence would return him to
action duty, he went AWOL again and the suspension was
vacated.
Other Offenses Contributing to Discharge: (Aggravating Factor #8)
Some applicants committed a conviction of AWOL and other
AWOL offenses which led to an undesirable discharge for unfitness. We rated
this as part of the over-all record and gave greater to the factor as the record
grew worse.
Persons previously convicted of felonies were not eligible to enter the
military, and most military members who were convicted of civilian offenses
while in the military were discharged for that conviction rather than for
AWOL offenses. Therefore, our military applicants with civilian convictions
normally committed their civilian offenses after discharge.
E.70
(No. 8334) Applicant received an undesirable discharge for unfitness,
with multiple reasons. In an addition to an NJP for
leaving his duty post and an SPCM for AWOL, he received
an NJP for wrongful possession of 4 liberty cards and an
SPCM for false claims against the givernment.
(No. 13926) Applicant reveived an undesirable discharge for unfitness.
He had an NJP for AWOL, one SPCM for 3 AWOL's and one SCM
for AWOL, and stealing. He also had three NJP's for failure
to obey and order, one NJP for disrespect, one SCM for dis-
respect, and an SPCM for disrespect and assault.
(4) Experience in the Civilian Cummunity:
As with our civilian cases, we looked to the applicant's activities
following his offense of our military cases, ( %) had some public service acti-
vities (Mitigating Factor # 4).
(5) Circumstance Surrounding the Application:
As with our civilian applicants, we were concerned about the ability
of each military applicant to find and hold alternative service employment.
While we did not have any specific mitigating factor on this point, we did take
this factor into account.
E.71
(No. 3473)
Prior to his enlistment, the applicant attempted suicide
by shooting himself in his left chest with a rifle.
According to Army medical reports, the applicant is
emotionally unstable, and one doctor stated that the
applicant was not mentally competend during his period
of service. After his discharge, the applicant went
home to his father who was so concerned about the
applicant's mental state that he had the applicant
committed to a state mental institution.
(No. 510)
Applicant explains that he was sent to Korea shortly
after enlisting and while there he contracted pheumonia
and had a cold his entire duty. Applicant was medically
evacuated from Korea to the United States for lung
surgery, when a part of one of his lungs was removed.
(No. 7590)
After being discharge, the applicant worked several places,
the latest being for a large industrial company. He was
hospitalized for Nervous Disorder and remains under out-
patient, psychiatric care. His emotional difficulties
caused him to terminate the above described employment.
False Statement by Applicant to the Board (Aggravating Factor # 2)
We looked only for a willful misrepresentation of a material fact.
We were not concerned about an applicant's false statements to military authorities,
unlèss he repeated them to US. We identified this factor in ( %) of our cases,
and ( %) resulted in no clemency.
(No. 388)
In his letter the applicant reports serving in Vietnam and
also reports that he was confined one and a half years in
the stockade without trial. There is nothing in his mili-
tary file to reflect these facts except a DD 214 entry
which was found to be erroneous.
(No. 368)
The applicant wrote the PCB and indicated that he had a
clean record with no priór courts-martial; however, his
military personnel file indicated one prior court-martial
and one Article 15 for AWOL offenses.
Personal or family Problems: (Mitigating Factor # 2).
This is traditionally the most common reason for military absence
offenses. Rightly or wrongly, many soldiers, have been placing their families
above the military from time immemorial. Reluctantly but realistically recognizing
this, we looked for significant emotional, psychological, financial, marital, or
E.72
other personal difficulties faced by the applicant or his immediate family which
could reasonably explain his offense. While the family problems always incurred
our sympathy, we were mindful of the hundreds of thousands of other men who
had left their homes and loved ones and who did not forget their duty. We were
also mindful of our responsibility not to undermine future military discipline
by appearing to excuse unauthorized absences. While the factor was given
weight, only in extraordinary circumstances did we feel family or personal
problems were of such a nature as to completely excuse the requirement for some
alternative service. #2 appeared in (%) of the military cases:
(No. 474) Applicant states that while at his army base he received
a letter from his mother stating that his father's eyesight was
failing and the family was having financial problems as a result of
his father's inability to work. He applied for a hardship discharge,
but it was denied. He was transferred back to his home base, where
he learned by mail that his father's eye condition had worsened.
Subsequently, he left the military control and went home where he
worked continuously for a construction company.
We used a broad definition of "inmediate" family.
(No. 189) This applicant, who is an American Indian, was raised
by his aunt and uncle in a small community in the South. During
his AWOL he worked for his tribe earning $2.00 an hour to support
his aunt and uncle, the latter being crippled.
And
(No. 3538) Applicant fathered a son to a Vietnamese woman. He
later sought permission to marry her, which was denied. Two days
later he received ordersto leave Vietnam when he thought he had
4 months left on his tour. After returning to the U.S., he applied
to return to Vietnam but was not sent there. He attempted to have
his Vietnamese girlfriend and his son brought to the U.S., but was
told this was impossible because he was AWOL.
GERALD
E.73
Evidence That Applicant Committed the Offense for Obviously Manipulative
and Selfish Reasons: (Aggravating Factor #5)
Many applicants left the military for unjustifiable, selfish reasons.
not
They, in particular, had/looked upon their military obligation with the serious-
ness it deserved. Naturally, the pressure of this factor heavily weighed against
an applicant. We found it in ( %) of our cases:
(No. 8410) Applicant was an infantryman in Vietnam when he went AWOL.
He was picked up in a rear area by MP's and ordered back
to the field by two Lieutenants. He refused to fly out to
join his company.
(No. 612)
Applicant stated that he went AWOL for approximately three
months knowing that after that period of time he could come
back and request a discharge.
(No. 344) Applicant went UA the first time "just for something to
do". He left the second time because he "got involved with
a woman." The third and fourth times he went UA were to
go home and support his family, as he was in no-pay status
with the Marine Corps.
(No. 173) Applicant escaped from the stockade by fleeing a police
detail. At the time of his escape, he was serving a sentence
adjudged by a Special Court for previous AWOL.
/ GERALE
II. THE PRESIDENT'S CLEMENCY PROGRAM
F. CONDITIONAL, NOT UNCONDITIONAL, CLEMENCY
PALD CAPALOR ForD
F. Conditional, Not Unconditional, Clemency
1. Introduction
The President extended his offer of clemency in a spirit of recon-
ciliation. At the same time, he expected those to whom his offer was
made to accept it in a spirit of reconcil ation. This meant two things:
First, the individual had to step forward and request that he be accepted
back into the community; second, he had to indicate his willingness to
again accept the responsibilities of a citizen by performing a period of
Alternative service. This fundamental part of the President's Program
most clearly distinguishes it from proposals for unconditional amnesty.
The President believed that an conditional program would be appro-
priate for at least three reasons. First it would serve to divide the coun-
try further, when the great need was for reconcilation. While no alterna-
tive service could match the hardships of the millions who served honor-
ably in Vietnam, much less the sacrifices of those who were wounded or
died, the President rightly believed that reconcilation would occur only
if those who did not perform their military obligation were required to
perform a kind of substitute service.
GORALD
Second, the President believed that those who failed to serve could
have no sound objection to doing the same kind of service as that performed
by thousands of conscientious objectors during the Vietnam era. This
7 Certain applicants to the Presidential Clemency Board received a form
of immediate clemency even if their pardon was conditioned upon perform-
ing Alternative Service. Persons furloughed had their prison sentences
commuted when the President signed their clemency warrants. Others with
probation, parole, or fines still outstanding also had those portions of their
sentences commuted immediately.
2
service permits a citizen to fulfill his obligation to his country by non-
military means if he cannot in good conscience bear arms on its behalf.
Finally, the President's firm desire that individuals be treated on a
case-by-case basis, and offered clemency according to the particular
circumstances of their case, required that conditions be imposed which
could reflect these different decisions. The alternative service condition
was peculiarly suited to this because it enabled the Board to adjust the
length of service to fit each individual case. The power to pardon,
created in Sections 1, 2, and 3 of the Constitution, carries with it the
power to condition the pardon upon the performance of certain conditions
before or after the grant. In Schick V Reed (
) the Supreme
Court made a thorough study of the Presidential pardon power, concluding:
this Court has long read the Constitution as authorizing the
the President to deal with individual cases by granting conditional
pardons. The very essence of the pardoning power is to
case individually.
In order to treat each individual case fairly and justly, the President
chose to exercise his prerogative to grant clemency only after certain
conditions had been met.
2. Application.
The President could have directed the Board to review the cases of
all those eligible without the requirement of an application. However,
since the grant of a pardon must be accepted by the recipient and also
could involve performing alternate service, it would have been a useless
gesture to review the cases of persons who would have declined the
President's offer anyway. Those individuals who wished to be
considered for clemency were thus required to make a specific
application for it.
The requirement that individuals affirmatively apply for
clemency had one unavoidable consequence: It made it in-
cumbent on the Board that we inform potential applicants of
the existence of the program. We are persuaded that sub-
stantially all of those eligible for the DOD and DOJ phases
learned of their eligibility, but also believe that a sub-
stantial number of persons eligible for our portion were
not aware of their elibility.
The application criteria were liberally construed. To
make a timely initial filing, the applicant or a person acting
in his behalf had to contact any agency of the Federal govern-
ment not later than the deadline of March 31, 1975. If this
contact was in writing by the applicant himself, or his
attorney, it was considered to be a valid application. If
the initial filing was made over the telephone or by some-
one other than his attorney, he had until May 31, 1975 to
confirm his request for clemency.
Where the application contained insufficient information
for us to obtain the facts necessary for our case-by-case
determination, we tried to contact the applicant and obtain
these facts. However, we could not consider applications
/ This subject is treated in more detail at pages
in this report.
for which we were unable to obtain the facts necessary
to make our decision.
The application requirements of the other two segments of
the Program were more difficult. The Executive Order
specified that these applicants had to appear in person to
participate. Both the Departments of Justice and Defense
required that an individual come to the United States if he
was outside of the country, go to a certain place, acknowledge
allegiance to the United States, and pledge to perform
alternative service. The Department of Justice required
that, upon entering the United States, a convicted draft
evader had fifteen (15) days in which time to present himself
to the United States Attorney in the judicial district in
which the draft evasion offense had occurred. This had to
occur not later than March 31, 1975. If an unconvicted
evader failed to comply with one of these conditions,
he was subject to prosecution for his draft evasion offense.
To receive clemency from the Department of Defense's segment
of the Program, a nondischarged military absentee had to
return to the United States, turn himself in at any military
base not later than March 31, 1975, and travel to the Joint
Clemency Processing Center in Indiana. When the military
/
Because all of our applicants to the Clemency Board had
already been punished for their draft evasion or military
absence offenses, we did not require a loyalty oath.
absentee took the oath and agreed to perform alternative
service, he was given an undesirable discharge. Only
after an eligible applicant had complied with the application
requirements of his segment of the Program was he allowed
to start performing his alternative service period to earn
an upgrade to a Clemency Discharge.
3. Alternative Service
Once we determined the disposition of a case, it was
referred to the President for his approval and signature.
The President did not execute formal grants of clemency in
two classes of case-where the individual's conviction was
not yet final and appeal rights might result in reversal,
and where the individual was presently incarcerated for a
subsequent offense. In both cases the President signed a
"letter of intent" to offer clemency once the conviction
became final or the individual was released from confinement,
as the case may be. The obligation to begin service did not
begin until the warrant was signed.
Not all of our applicants were asked to perform alternative
service. Approximately fifty percent of our applicants were
asked to perform three to twelve months at a suitable alterna-
tive service job, but, forty-three percent received immediate
pardons or clemency discharges, without having to do alterna-
tive service.
6
Those who were required to perform alternative service
under any part of the President's program they came under
the jurisdiction of the Selective Service System, pursuant
to Executive Order 11804. From the date that we mailed the
letter to one of our applicants informing him that the
President's offer of clemency was contingent upon success-
ful completion of alternative service, he had thirty days
in which to enroll with Selective Service, Department of
Defense and Department of Justice applicants had 15 days.
All individuals with alternative service to perform
were informed by their referring agency that under Selective
Service rules they could perform this service in any state
in the United States. To enroll they had to go to the
place where they wanted to reside and contact the nearest
office of Selective Service. There are over 650 such offices
throughout the United States. (These offices are supervised
by 56 State Directors, located in each of the 50 states plus
New York City, the District of Columbia, Puerto Rico, Guam,
the Panama Canal Zone, and the Virgin Islands.) Initially he
had the opportunity of finding a job of hiw own choosing. If
he found a suitable job that he wished to perform, he was
required to notify his State Director a minimum of ten days
before the end of the thirty day period. This gave the State
Director ample time to determine if, in fact, the job met
the eligibility criteria.
The following criteria for acceptable alternative
service jobs were established by Selective Service:
A.
The enrollee must work full-time (i.e., forty
(40) hours per week) at a job that promoted the
national health, safety or interest,
B.
The enrollee must not interfere with the competi-
tive labor market (i.e., he cannot be assigned to
a job for which there were more qualified appli-
cants who were not returnees than there were
spaces available),
C.
The job must be with a non-profit organization
(e.g., the government, certain religious organiza-
tions, other charitable organizations).
D.
Unless he obtains a waiver from his State Selective
Service Director, the pay that an enrollee received
from his employer must provide him with a standard
of living that was at least equivalent to that which
he would have enjoyed had he gone into or stayed in
the military.
E.
The Selective Service sought to find jobs that would
utilize any special skills or talents that an enrollee
had.
If the enrollee did not find a suitable job, the State
Selective Service Director had to have found one for him
by the end of the thirty day period.
Because of local economic situations, it has often been
difficult for enrollees to find their own jobs, and it has
not even always been possible for Selective Service to place
every enrollee within the thirty day period. To be fair to
the enrollee, Selective Service rules specified that if
through no fault of his own the enrollee had not been placed
in a job within the thirty day period, creditable time would
commence on the thirty-first day following his enrollment.
While this provision is not entirely satisfactory since
it permits an individual to "earn" clemency before he has
a job, it avoids penalizing individuals who are willing
to serve but for whom no job is available.
For many, alternative service jobs have offered the
beginning of a new career:
A former Marine's alternative service has
consisted of assisting a jailer. He adapted
well to his job, went to school on his own
time, and is now a deputy sheriff.
An Army veteran was assigned as a rodent and
insect control inspector for the city's
health department. His supervisor is so
pleased with his work that he hopes to retain
him after his alternative service is over.
So far, almost 70 people have completed their periods of
alternative service under the President's program. As the
table below indicates, the Department of Defense segment
of the program has the highest number of applicants in
this category. Others have begun their jobs, but --
unfortunately -- many others have not.
9
Information on Reconcilation Service Program
August 11, 1975)
Department
Clemency
Cummulativ
Status
Military
of Justice
Board
Totals
Totals
Enrolled
4508
723
101
5332
I
Completed A/S
52
9
7
68
68
At Work
1353
459
19
1831
1899
Referred to Job(s)
909
170
12
1091
2990
Job Interruptions
145
29
2
176
3166
Postponed
63
21
2
86
3252
New Enrollees
15
57
72
3324
Terminated
1986
20
2
2008
5332
The success of the Department of Justice in having its applicants
do alternative service reflects the threat of prosecution facing
those terminated from the program. Many Department of Defense
applicants may have applied for clemency just to end their
fugitive status and receive an Undesirable Discharge. This
may explain the large number of Defense applicants who either
never enrolled with Selective Service or later terminated for
failing to accept the designated employment.
The failure of many of our applicants to enroll with Selective
Service or to begin alternative service work may be the result
10
of two factors. Many of our clemency recipients may not
understand some basic facts about their alternative
service obligation. Unlike the other two agencies with
clemency programs, we were unable to counsel our appli-
cants in person. Likewise, our shorter alternative service
assignments of three to six months may make it harder for
our applicants to find jobs.
III