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Final Report - Draft, 8/29/75 (4)
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Final Report - Draft, 8/29/75 (4)
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Charles E. Goodell Papers
Presidential Clemency Board Subject Files
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President (1974-1977 : Ford). Presidential Clemency Board. 9/16/1974-9/15/1975
Amnesty
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The original documents are located in Box 4, folder "Final Report - Draft, 8/29/75 (4)" of
the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Charles Goodell donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 4 of the Charles E. Goodell Papers at the Gerald R. Ford Presidential Library
1V-C-40
(Case No. 10402) For a year-and-a-half after he
was drafted, applicant tried to obtain
conscientious objector status, because
he did not believe in killing human
beings. He is minimally articulate, but
stated that even if someone was trying
to kill him, he could not kill in return.
He talked to his Captain and the Red Cross,
neither of whom found his aversion to
taking human life to be persuasive.
When his application was denied and he
was scheduled for Vietnam he went AWOL.
After submitting his application, the soldier was inter-
viewed by a chaplain and a military psychiatrist. The chaplain
had to comment on the sincerity and depth of the applicant's
belief, and the psychiatrist evaluated him for mental disorders.
One of our applicants alleges a difficult time with a psychiatrist
he consulted regarding a C.O. application.
(Case No. 0472) Three years after enlisting in the Navy,
applicant made several attempts to be
recognized as a conscientious objector.
He spoke with chaplains, legal officers
RALD
doctors, and a psychiatrist. He told the
psychiatrist of his opposition to the war
in Vietnam and of his heavy drug use.
The psychiatrist threw his records in his
10-C-41 -
face and told him to get out of his
office. He went AWOL after his experience
with the psychiatrist.
The conscientious objectors next stop was to present his
case before a hearing officer, who in turn made a recommenda-
tion through the chain of command on his request. The final
authority rested either with the general Court-Martial convening
authority (usually the installation commander) or with the
administrative affairs office in the appropriate Service
Department Headquarters.
Approximately 17,000 requests for in-service conscientious
objector status were made during the Vietnam War. Altogether,
were granted. The approval rate was much
higher in the early 1970's than in the late 1960's. Only
% were approved in 196 , while
% were
approved in 197
.
Since at least 4.6% of our military applicants committed
their offenses primarily because of their opposition to the
Vietnam War, the much smaller percentage of those who applied
for in-service conscientious objector status may indicate that
many did not know such a remedy existed, had little hope their
request would be approved, or feared repercussions for expressing
their beliefs. In addition, some of our applicants were
apparently misinformed about application criteria when they
did inquire.
CRAED
IV-C-42
(Case #
)
From the time of his arrival at his
Navy base, applicant consulted with
medical, legal, and other officers on
how to obtain a discharge for conscientious
objection. He was told that the initiative
for such a discharge would have to be taken
by the Navy, so he would have to demon-
state that he was a conscientious objector.
He then went AWOL to prove his beliefs.
Following his conviction for that brief
AWOL, he requested a discharge as a
conscientious objector. His request was
denied.
IV-C-11
5. Assignment to Vietnam
During the height of the Vietnam War, our applicants were ordered to
Vietnam about six months after entering the service. Just over half (51%) of our
applicants received orders for Vietnam. Most complied with the orders, but many
did not. Twenty-four percent of our applicants were discharged because of an
AWOL offense they committed prior to departure for Vietnam.
(Case # 03584) Applicant received orders to report to Vietnam. While
on leave before he had to report, he requested help
from his Congressman so that he would not be sent over-
seas. He also applied for an extension of his departure
date on the grounds that his wife was 8 months pregnant
and that he was an alien. His request was denied, and
he went AWOL.
Once they arrived in Vietnam, our applicants were less likely to desert.
They faced the risk of being stranded in a foreign nation without the legal
documents necessary to permit their return. They also faced the risk of capture
by the enemy. Finally, any desertion offense under combat conditions could be
treated more harshly by military authorities. Only 3.4% of our applicants desert-
ed from Vietnam, and one-third of those went AWOL from non-combat situations. In
many cases, their reasons related to personal problems, often of a medical nature.
(Case #00423) Applicant was assigned to an infantry unit in
Vietnam. During his combat service, he sustained an
injury which caused his vision to blur in one eye.
His vision steadily worsened, and he was referred to
an evacuation hospital in DaNang for testing. A
doctor's assistant told him that the eye doctor was
fully booked and that he would have to report back
to his unit and come back to the hospital in a
couple of weeks. Frustrated by this rejection and
fearful to his inability to function in an infantry
unit, applicant went AWOL.
Almost 90% of our applicants who were sent to Vietnam were assigned to
combat situations. Some -- but not many -- acrually deserted while serving in a
combat assignment.
(Case # 3304) Applicant would not go into the field with his unit
because he felt the new C.O. of his company was in-
competent. He was getting nervous about going out on
an operation in which the probability of enemy contact
IV-C-12
was high. (His company was subsequently dropped onto
a hill where they engaged the enemy in combat). He
asked to remain in the rear but his request was denied.
Consequently, he left the company area because, in the
words of his chaplain, "the threat of death caused him
to exercise his right of self preservation." Applicant
was apprehended while traveling on a truck away from
his unit without any of his combat gear.
Once a soldier arrived in Vietnam it was difficult for him to leave the
country. He was permitted to return to the U.S. on emergency leave when appropriate.
Also, he was offered several days of "R&R" (Rest and Relaxation) at a location
removed from combat zones, and frequently outside of Vietnam. It was on these
sojourns outside of Vietnam that some of our applicants departed AWOL.
Many of our applicants served with distinction in Vietnam. They fought
hard and well, often displaying true heroism in the service of their country. Of
our applicants who served in Vietnam, one in eight was wounded in action. One in
twelve was awarded a Bronze Star for heroism in combat, and some even earned a
Silver Star.
(Case #2065) While a medic in Vietnam, applicant (an American Indian)
received the Bronz Star for heroism because of his actions
during a night sweep operation. When his platoon came
under intense evening fire, he moved through a mine field
under a hail of fire to aid his wounded comrades. While
in Vietnam, he was made Squad Leader of nine men, seven
of whom (including himself) were wounded in action. In
addition to his BronzeStar, he received the Army Commen-
dation Medal with Valor Device, the Vietnam Service Medal
with devices, the Vietnam Campaign Medal, and the Combat
Medics Badge.
Others experienced severe psychological trauma from their combat experiences;
some applicants turned to drugs to help them cope.
(Case #00188) During his combat tour in Vietnam, applicant's platoon
leader, with whom he shared a brotherly relationship,
was killed while awakening applicant to start his duty.
He was mistaken for a Viet Cong and shot by one of his
own men. This event was extremely traumatic to the
applicant, who experienced nightmares. In an attempt
to cope with this experience, he turned to the use of
heroin. After becoming an addict, he went AWOL.
IV-C-13 -
Still other applicants indicated that combat experience was a source of
personal fulfillment.
(Case #0423) Applicant, who was drafted, was pleased by his
assignment to Vietnam because of his confidence
in his training and membership in a cohesive,
elite unit.
In fact, almost one-half of our applicants who served in Vietnam had volunteered
either for Vietnam service, for Combat action, or for an extended Vietnam tour.
They enjoyed the close comradeship of combat situations and felt a sense of
accomplishment from doing a difficult job well. Occasionally, an applicant indi-,
cated he went AWOL because of his inability to extend his tour in Vietnam.
(Case # 8232) While in Vietnam, applicant tried to extend his tour
but his request was never answered. He was told much
later that he would have to wait until he returned
stateside, he was told that he could not return, so he
went AWOL. He had derived satisfaction from his work in
Vietnam because he was respected, and he found the
atmosphere close and friendly.
Combat experience for some applicants also produced a sense of
uneasiness about the cause for which they were fighting.
IV - C - 14
(Cáse #03697) Applicant was successfully pursuing his military
career until he served in Cambodia assisting the
Khmer Armed Forces. He began to experience internal
conflicts over the legality and morality of Army
operations in Cambodia. This reinforced his feelings
and resulted in disillusionment.
Our Vietnam Veteran applicants frequently articulated severe readjustment
problems upon returning to the United States. This "combat fatigue" or "Vietnam
syndrome" was partly the result of the incessant stress of life in combat.
(Case #2892) After returning from two years in Vietnam, applicant
felt that he was on the brink of a nervous breakdown.
He told his commander that he was going home and could
be located there, if desired. He then went AWOL from his
duty station.
Two-fifths of our Vietnam veteran applicants (11% of all military appli-
I lamel to have
cants) experienced severe personal problems as a result of their tour of duty.
These problems were psychological (45%), medical (34%), legal (17%), financial (8%),
or familial (5%). One third of their psychological and medical problems were
permanent disabilities of some kind. They often complained that they had sought
help, received none, and departed AWOL as a. consequence.
(Case #2065) (This is a continuation of the case of the American
Indian who received a Bronze Star for heroism). After
applicant's return to the United States from Vietnam,
he asked his commanding officer for permission to see
a chaplain and a psychiatrist. He claimed that he was
denied these rights, so he decided to see his own doctor.
BALD
(#2065) cont'd
He was given a psychological examination and was
referred to a VA hospital. After a month of care,
he was transferred back to camp. He again sought
psychiatric care, but could find none. Later, he
was admitted to an Army hospital. One examining
psychiatrist noted that he needed prompt and fairly
intensive short-term psychiatric care to avert further
complications of his war experience. His many offenses
of AWOL were due to the fact that he felt a need for
psychiatric treatment but was not receiving it.
Our Vietnam veteran applicants frequently complained that upon return to
stateside duty, they encountered a training Army and the routine of peacetime duty
lacking the satisfaction of the more demanding combat environment. Some adjustment
problems may have resulted from their injuries.
(Case. #08349) After his return from Vietnam, applicant was frustrated
over his inability to perform his occupational speciality
as a light vehicle driver due to his injuries. His work
was limited to details and other menial and irregular
activity that led him to feel "like the walls were closing
in on me." He then went AWOL.
Unfortunately, other soldiers who had never seen combat experience were
sometimes unfriendly to those who had, adding to the combat veterans' readjustment
problems.
(Case #8145) While in Vietnam, applicant saw much combat action and re-
ceived numerous decorations. He was an infantryman and
armor crewman who served as a squad and team leader. He
participated in six combat compaigns, completed two tours
in Vietnam, and received the Bronze Stars for heroism.
In one battle, he was wounded -- and all his fellow
soldiers were killed. His highest rank was staff sergeant
(E-6). Upon his return from Vietnam, he went AWOL because
of harassment from fellow servicemen that he was only a
"rice paddy NCO" who would not have his rank if not for the
war.
Veterans of other wars usually came home as national heroes. The Vietnam
veteran, however, was greeted coolly. Some of our applicants were disappointed by
the unfriendly reception they were given by their friends and neighbors. Many
Vietnam veterans, deeply committed to the cause for which they had been fighting,
were unprepared to return home to the attitudes of Americans in the midst of
controversy over the war.
070835
1V-C-16
(Case #
) Applicant received a Bronze Star and Purple Heart
in Vietnam. He wrote the following in his appli-
cation for clemency: "While in Vietnam, I didn't
notice much mental strain, but it was an entirely
different story when I returned. I got depressed very
easily, was very moody, and felt as if no one really
cared that I served their country for them. And this
was very hard to cope with, mainly because while I
was in Vietnam I gave it 100%. I saw enough action for
this life and possibly two or three more. I hope that
someone understands what I was going through when I
returned."
(Case # 8145) On his return from combat in Vietnam, applicant found
it difficult to readjust to stateside duty. He was
shocked by the civilian population's reaction to the
war and got the feeling he had been "wasting his time.
6. AWOL Offenses:
By going AWOL, our applicants committed at least one of three specific
military offenses: AWOL (Article 85, UCMJ), Desertion (Article 86, UCMJ), and
Missing Movement (Article 87, UCMJ). Of the three, desertion was the most serious
offense. To commit desertion, our applicants had to be convicted of departing
with the intent to avoid hazardous duty or shirking important service (the most
serious form of desertion), or absenting himself with intent to permanently remain
away. Though the military service administratively classified most of our appli-
cants as deserters, (usually because they were gone for periods in excess of 30 days),
only 9.2% of our applicants were convicted of the offense of desertion. Desertion
convictions were difficult to obtain because of the difficulty proving the intent
element of the offense (e.g. intention to remain away permanently, etc.)
A soldier could be convicted of missing movement when he failed to accompany
his unit aboard a ship or aircraft transporting them to a more strategic position.
Only 0.9% of our applicants were convicted of missing movement.
GERALD FORD
IV-C-17
The majority of our applicants - 90% - were convicted of AWOL. Almost
one-fourth of our applicants sustained an AWOL conviction for failure to report
for transportation to Vietnam. AWOL was the easiest form of unauthorized
absence to prove and the lesser included offense of desertion. Hence, where
the evidence did not establish the intent element of desertion, a military
court could still return a finding of AWOL.
There were recognized defenses to the various chargesof AWOL. However, the applicant
had to establish credible evidence of a defense to avoid conviction once the govern-
ment established a pima facie case. This was often difficult to do, and provoked
some unusual explanations.
RALD
(Case #16332) Applicant states he was traveling across the Vietnamese
IV-C-18
countryside with a sergeant, when he and the sergeant
were captured by the Viet Cong. He was. a POW for two
months before he finally escaped and returned 30 pounds
lighter and in rags, to his unit. His unit commander
did not believe his story, and his defense counsel
advised him to plead guilty at his trial.
Our military applicants went AWOL from different assignments, for different
reasons, and under a variety of circumstances. As described earlier, 7% left from
basic training, 10% from advanced individual training, 52% from other stateside
duty, 24% because of assignment to Vietnam, 3.4% from Vietnam, and 1.3% from
Vietnam leave. The remaining 2.3% went AWOL from overseas assignements in countries
other than Vietnam.
As a criminal offense, AWOL is peculiar to the military. If a student leaves
his school, he might be expelled. If an employee leaves his job, he might be fired
and suffer from a loss of income. But if a serviceman leaves his post, he might
not only be fired, but also criminally convicted, fined and imprisoned. These extra
sanctions are necessary -- especially in wartime -- to maintain the level of military
discipline vital to a well-functioning Armed Forces. Desertion in time of Congress-
ionally-declared war carries a possible death penalty, and most of the offenses
committed by our applicants could have brought them long periods of confinement. Such
swift, certain, and severe penalties are necessary to deter military misconduct even
in the face of enemy fire.
In light of this, why did all of our applicants go AWOL? Why did an estimated
500,000 soldiers go AWOL during the Vietnam War? Almost 4,000 of our applicants were
Vietnam combat veterans, yet they risked -- and lost-- many privileges and veterans
benefits as a result of their offenses.
Though the general public frequently assumed that many unauthorized absences
during the Vietnam era were motivated by conscientious opposition to the war, and
this was a factor motivating this program, only 4.6% of our military applicants went
AWOL primarily because of an articulated opposition to the war.* An additional
1.8% went AWOL to avoid serving in combat.
* By coincidence, this 4.6% figure corresponds to the 4.6% of all cases in which
our Board identified conscientious reasons (mitigating factor #10). It is very
close to the % conscientious objection figure cited by the Defense Department's
clemency program and the 3.6% finding of an earlier AWOL study.9
IV-C-19
While another 9.7% left because they did not like the military; both reasons
may have implied an unarticulated opposition to the war. Thus, at most, only
10% of our applicant's offenses fit the broadest possible definition of conscien-
tious objection.
(Case #03285) Applicant decided he could not conscientiously remain
in the Army and went to Canada where he worked in a civilian
hospital. Prior to his discharge, applicant stated: "In
being part of the Army, I am filled with guilt. That guilt
comes from the death we bring. I am as guilty as the man
who shoots the civilian in his village. My being part of the
Army makes me just as guilty of war crimes as the offender."
A small but significant 1.8% of our applicants went AWOL because of post-
combat psychological problems.
(Case #8887) Applicant received a Bad Conduct Discharge for an AWOL between
16 March and 28 Vovember 1970. This AWOL was terminated by
surrender in California. Applicant went AWOL because he was
"disturbed and confused" upon returning from Vietnam. He
described himself as "really weird, enjoying killing and stuff
like that", and as being "restless". During the AWOL, he was
totally committed to Christ and the ministry.
In some instances, an applicant's actions seemed beyond his reasonable control.
(Case #05233) Applicant participated in 17 combat operations in Vietnam. He
was medically evacuated because of malaria and an acute drug-
induced brain syndrome. He commended his AWOL offenses shortly
after he was released from the hospital. Since his discharge,
applicant has either been institutionalized or under constant
psychiatric supervision.
Approximately thirteen per cent of our applicants left the military alleging
denied requests for hardship leave, broken promises for occupational assignments
and improper enlistment practices, or other actions by their superiors which might
have been perceived as unfair.
(Case #0751) Applicant enlisted for the specific purpose of learning aircraft
maintenance, but instead was ordered to Artillery school. When
he talked with his commanding officer about this, he was told
that the Army needed him more as a fighting man.
(Case #4793) Applicant, a Marine Sergeant (E-5) with almost ten years of
creditable service, requested an extension of his tour in
Okinawa to permit him time to complete immigration paperwork
for his Japanese wife and child. Several requests were denied.
IV-C-20 -
Upon return to the United States, he again requested time, in
the form of leave. He was unable to obtain leave for five
months, until it was granted after he sought help from a
senator. Applicant relates that his First Sergeant warned him,
before he left on leave, that "he was going to make it as hard
for him as he could" when he returned, because he had sought
the assistance of a senator.
(Case #0649) Applicant enlisted in the Army for a term of three years,
specifying a job preference for electronics. The recruiter
informed him that the electronics field was full, but that if
he accepted assignment to the medical corps he could change his
job after entry onto active duty. Once on active duty, applicant
was informed that his MOS could not be changed. He was unsuccess-
ful in obtaining the help of his platoon sergeant, aompany commander
and chaplain, so he left AWOL.
(Case #0269) Applicant states that his father, who had suffered for three years
from cancer, committed suicide by hanging. His family's resources
and morale had been severely strained by the father's illness
and death. Applicant spent a period of time on emergency leave
to take case of funeral arrangements and other matters. At the
time, his mother was paralyzed in one arm and unable to work.
Applicant sought a hardship discharge, but after three weeks
of waiting his inquiries into the status of the application revealed
that the paperwork had been lost. Applicant then departed AWOL.
10-C-21
Most of these violators were AFQT Category III or IV individuals, many
of whom were only marginally fit for military service at the time of their
enlistment.
(Case #14813) Applicant has a category IV AFQT score. He
went AWOL because he was apparently unaware of
or did not understand the Army drug abuse program.
The corrections officer at the civilian prison
where he is incarcerated believes that applicant's
retardation, while borderline, makes it impossible
for him to obey rules and regulations.
Sixteen percent committed their offenses because of personal reasons--
usually medical or psychological problems. Half of their problems were
related to alcohol or drugs.
(Case #01371) Applicant started drinking at age 13 and was an
excessive user of alcohol. Awaiting court-martial
for one AWOL offense, applicant escaped but
voluntarily returned shortly thereafter. He
claimed that his escape was partly the result of
his intoxication from liquor smuggled in by another
detainee. A psychiatrist described him as emotionally
unstable, unfit for military service.
The bulk of our military applicants 41% committed their offenses because
of family problems. Sometimes these problems were severe; sometimes not.
(Case #00191) Applicant commenced his absence from a leave status
because of his father's failing health and his mother's
poor economic prospects. He had applied twice for
hardship discharges before his offense. While appli-
cant was AWOL, his father died of a stroke. His mother
was left with a pension of $22 a month; she was a polio
victim and unable to work.
&
FORD
CRALD
1V-C-22 22
Finally, twelve percent went AWOL for reasons of immaturity, boredom, or
just plain selfishness. These tended to be people who could not--or would not--
adjust to military life.*
(Case #14392) As a youth, applicant experienced numerous conflicts with
his parents and ran away from home on several occasions.
He joined the Army because there was nothing else to do
in the rural community in which he was raised. Applicant
had difficulty adjusting to the regimentation of Army life,
and he went AWOL four times.
Our typical applicant went AWOL three times; over four-fifths went AWOL more
than once. AWOL offenders tended to be 19 or 20 when they committed their first
offense, 20 or 21 when they committed their last offense.
Their first offense occurred between 1968-1970, and their last between
1969-1971. Typically, their last AWOL was their longest, lasting months.
At the time of their last AWOL, they had usually accumulated to months of
creditable military service time; % had six months or more of creditable
service, enough to qualify them for veterans benefits. Only 1.1% used any force
to effect their escape from the military.
While AWOL, almost all of them (81%) were employed full-time. Only 8% were
unemployed. Often they were working in jobs where they would have been fired,
lost their union membership, or had their trade license revoked if their AWOL status
had been known.
(Case #00230) During his AWOL, applicant found employment as a tile and
carpet installer. He became a union member in that trade.
*This 12% figure is considerably less than the 28% of all cases in which our Board
identified selfish and manipulative reasons (aggravating factor #5). The reason
for this discrepancy is that many of the family problems cases involved such minor
difficulties that we had to regard the AWOL offenses as a selfish neglect of
military responsibilities.
IV-C-23
(Case #08145) During his AWOL period, applicant worked as a carpenter
to support his sister's family. Later, he worked as a
security guard.
Over three-quarters (76%) either returned to military control immediately or
settled in their home towns under their own names. Most carried on life just
as they had before they joined the service. Another 13% settled openly in the
United States, and 6% settled in the foreign country where they had been assigned
(often Germany). Only 5% became fugitives: 2% in Canada, 2% in other foreign
countries (often Sweden), and 1% in the United States.
(Case #00847) Applicant went back to his old job after going AWOL.
He never changed his name or tried to conceal his
identity.
Slightly over half (52%) of our applicants were arrested for their last
AWOL offenses. Some efforts were made to apprehend AWOL soldiers, but those
efforts were startling ineffective. Normally, an AWOL offender's commanding officer
sent a letter to his address of record within ten days of his absence. He also
completed a form, "Deserter Wanted by the Armed Forces" which went to the military
police, the FBI, and eventually the police in the soldier's home of record. Either
the local police never received their copies, or they were unwilling to arrest
AWOL offenders. We had countless applicants who lived openly at home for years until
they surrendered or were apprehended by coincidence (for example, through a routine
police check after running a red light). In some cases, the military itself did not
seem that interested in locating AWOL soldiers.
(Case #03697) Applicant had a duty assignment at a military office in
Germany. He experienced a great deal of tension, frustration,
and restlessness, culminating in a feeling one day that he
'couldn't face" going to work. He remained at his off-post home
during his AWOL. His office made no effort to contact his wife
during the entire period of his AWOL. He drank heavily, became
anxiety-ridden, and concealed his AWOL status from his wife by
feigning to go to work each morning. He was eventually appre-
hended when his wife, concerned over his strange behavior, called
his office to ask his co-workers if they knew what was wrong with
him. They had not seen him in months.
1V-C-24 -
Most apprehended AWOL offenders were arrested by civilian police. They were
kept in local jails until they could be delivered to a central "pick-up" facility,
often a period of several days. Military police were usually available to AWOL
soldiers only in the immediate vicinity of military bases.
IV-C-25
7.
Encounters with the Military Justice System
Upon returning to military control, our applicants had to face some form
of discipline. Some (14%) faced other charges in addition to AWOL or Desertion.
In all cases, their last AWOL offenses factored in their discharge under other
than honorable conditions. Hundreds of thousands of other AWOL offenders were
more fortunate. They received more lenient treatment and later were discharged
under honorable conditions. About twenty-two percent of our applicants had
records reflecting at least one period of unauthorized absence for which no
punishment was indicated.
Most of the Army soldiers who were AWOL for over thirty days were processed,
upon their return to military control, through a Personnel Control Facility
(PCF) formerly known as Special Processing Detachments. These were units with
their own billets and chain of command. It was from this command structure
that the decision was made, in appropriate cases, to confine returning offenders.
Life at these facilities was not always easy for our applicants. While there
were some opportunities for simple tasks, boredom, anxiety and petty crime
were commonplace, making life difficult.
(Case #08349) Applicant voluntarily surrendered himself to an Army post
near his home town. He found conditions in the personnel
control facility intolerable due to the absence of regular
work, the prevalence of crime, and the continued lack of
regular pay. He went AWOL again one week later.
While in the PCF, our applicants were processed for administrative or
court-martial action. At the outset, they were briefed by a JAG officer
(a military attorney) who advised them generally what disciplinary actions to
expect. They were told about their opportunity to request a discharge in
lieu of court-martial.
Some first offenders were quickly re-integrated into military life.
Others faced more uncertainty about their fates. They had to decide,
in most instances, whether to proceed to a trial or accept an administrative
IV-C-26
discharge. The decision to go to trial usually carried the risks of conviction,
a period of confinement, and perhaps a punitive discharge. Their stay in the
PCF or pre-trial confinement might be lengthened due to delays essential to
attorneys preparing their cases. On the other hand, after service of confinement,
they would be able to return to active duty, and serve out their enlistment
which would be extended by the equivalent of time they were AWOL and in confinement.
Even if a punitive discharge had been adjudged, a return to active duty was
frequently permitted as a reward for having demonstrated rehabilitative potential
while confined. If no further problems developed, they would separate from the
service with a discharge under honorable conditions and entitlement to many
veterans benefits.
The decision to accept an administrative discharge in lieu of trial amounted
to a waiver of trial, a virtual admission of guilt, and a discharge under less
than honorable conditions. However, the administrative process was speedier,
so they could return to their personal and family problems; they avoided confinement,
and they did not have to risk a return to military life with a conviction that
might set them apart from other soldiers and lead to further disciplinary
problems. Though they were acquiring a stigmatic discharge (which many felt
as a consequence of their experiences while AWOL, would not be a major liability)
they were aVoiding a federal criminal conviction.
Thus, the choices for the average 18 to 20 year old were very difficult.
Many of those who chose the administrative discharge route did so to get away
from the PCF or further pre-trial confinement. Others found their return to
military control too difficult an adjustment and departed AWOL again; putting
the decision off until they again returned to military control.
IV-C-27
If our applicant had established what his commander felt was a pattern of
misconduct, the commander might decide that he was no longer fit for active
duty. The commander would then notify the soldier of his proposed action and
the soldier would have to fight the action by demanding a board of officers.
Otherwise he would waive his right to such a board. If he asked for the Board,
the convening authority would then detail at least three officers to hear
the evidence, as presented by the government, and as rebutted by the respondent
and his detailed military defense counsel. The Board was then authorized
to make a finding that the soldier was either unfit or unsuitable for further
military duty, if they believed he should be discharged. They could also
find that he was suitable for retention. If they found a basis for discharge,
they were then obligated to recommend an appropriate discharge classification.
If they found the soldier unsuitable, the normal recommendation to the convening
authority would be discharge under honorable conditions. However, while an
honorable classification was also possible if unfitness were found, the usual
result in such a case was to recommend an undesirable discharge. Once the
Board made its findings, the convening authority had to implement the Board's
decision, or take some other action as provided by the service regulations.
Though the convening authority in the Army may make no disposition more
severe than rendered by the Board, that is not true in the Air Force.
The line between the unsuitability discharge and the unfitness discharge
was often as fine one, lacking clear distinction; yet the choice between
them affected an AWOL offender's reputation and eligibility for veterans benefits
for the rest of his life.
DOD Directive 1332114 provides for early separations for soldiers frequently
involved in disciplinary problems or drug abuse. Overt homosexuality may also
cause
separation for unfitness in some services, as well as established
pattern of shirking and unsanitary habits (generally repetitive VD).
** The rule-of-thumb often applied is that an Unsuitability Discharge went to a
soldier "who would if he could, but he can't" -- in other words, to someo with
a psychological problem or inaptitude. Also included is bed wetting, -and inancial
irresponsibility. An Unfitness Discharge went to a soldier with more of an
attitude problem, "who could if he would, but he won't."
IV-C-28 -
(Case # 8328) Applicant was under consideration for an unsuitability discharge.
A military psychiatrist indicated that he suffered from a
character and behavior disorder characterized by "impulsive,
escape-type behavior" and "unresolved emotional needs marked
by evasion. of responsibility". Because of this diagnosis
of a severe character and behavior disorder, he espected
a General Discharge. Shortly before his discharge, a racial
disruption occurred in his company, in which applicant took
no part. This disruption led to the rescission of a lenient
discharge policy, and applicant was given an Undesirable
Discharge for unfitness.
The more common administrative procedure, accounting for the discharge of
45% of our applicants, was the "For the Good of the Service" discharge, in lieu
of court-martial,* which was granted only at the request of a soldier facing
trial for an offense for which a punitive discharge could be adjudged. Until
recently, it did not require an admission of guilt -- but it did require that
the AWOL offender waive his right to court-martial and acknowledge his will-
ingness to accept the disabilities of a discharge under other than honorable
conditions (e.g. undesirable discharge). Although none of our applicant were so
fortunate, a few AWOL offenders received General Discharges through "Good of the
Service" proceedings.
Our applicants did not have a right to a discharge in lieu of court-martial.
They could only make a request. To qualify, for the discharge, the AWOL for
which the applicant was facing trial had to range between 30 days and a year and
a half, depending on the standards set by the convening authority where the
applicant returned to military control.
(Case # 0664) Applicant was absent without leave twice for a total of
almost one year and two months. He applied twice for a discharge
in lieu of court-martial for his AWOL's, but both requests
were denied.
Occasionally, our applicants indicate they went AWOL specifically to qualify for
a "Chapter 10" discharge.
(Case #15528) After his third AWOL, applicant requested a discharge in
lieu of court-martial, which was denied. He then went AWOL
three more times. He told an interviewing officer after his
6th AWOL that he had gone AWOL in order to qualify for a Chapter
10 discharge.
* This is commonly called the "Chapter 10" discharge within the Army; referring
to AR635-200 Chapter 10.
IV-C-2
AWOL offenders who qualified for a discharge in lieu of trial rarely chose to
a face court-martial. The desire was often strong to leave the PCF or get out
of pre-trial confinement. If a soldier was granted a Chapter 10 discharge, he
was usually allowed to leave the PCF or confinement within one week after his
application. One to two months later, he was given his discharge. Occasionally,
our applicants indicate they went home expecting to receive a General Discharge,
only to get an Undesirable Discharge.*
Whether one of our applicants was better off -- or worse off -- for
receiving an administrative discharge in lieu of trial is hard to say. On the
one hand, it prevented him from facing a court-martial and the risk of a punitive
discharge and imprisonment. On the other hand, he relinquished a full opportunity
to defend the charges against him. He might have had been acquitted or had
his charges dropped. He might also have been convicted but not discharged,
giving him another chance to earn an Honorable Discharge. Even if convicted
and a discharge adjudged, he might have obtained a suspension, and ultimately
a remission, of the discharge after a period of good conducts.
Our applicants who received discharges in lieu of trail generally were
those whose last AWOL ended between 1971 and 1973. The likelihood of receiving
a discharge was greater if their AWOL had been no more than one year in length.
* While it was a permissible practice in the Army at some installations prior to
197 for an accused to condition his request for discharge in lieu of trial upon
his being granted a General Discharge under honorable conditions, they were
rarely granted. Thus, in order to speed the discharge application, many soldiers
requested discharge, acknowledged that they might be given a UD, but requested
that they be furnished a GD in a separate statement. This may account for
some misunderstanding by many applicants as to the discharge they would receive.
See case #8349 above.
IV-C-30
The following two tables relate the effects of year of discharge and length of
last AWOL on the type of punishment which our applicants received.
YEAR OF DISCHARGE
1966
1967
1968
1969
1970
1971
1972
1973
UD - in lieu of trial
3%
1%
11%
37%
34%
67%
62%
56%
UD - Unfitness
26%
25%
27%
19%
10%
12%
6%
12%
Punitive Discharge
71%
74%
62%
54%
56%
21%
32%
32%
(court-martial)
LENGHT OF AWOL
0-6 Months
7-12 Months
over 12 months
UD - Discharge in lieu of tiral
50%
45%
36%
UD - Unfitness
21%
10%
7%
Punitive Discharge
29%
45%
57%
(court-Martial)
It is worth noting that 51% of our AFQT Category IV applicants received discharges
in lieu of trial compared to 44% of our Category II and III soldiers, while only
32% of our Category I servicemen were ousted by that process. Blacks were about
equally as likely as whites to receive Chapter 10 discharges (46% versus 44%),
but Spanish-speaking soldiers received a very disproportionate share (66%).
10-C-31
Some of our applicants requested -- or the military insisted --
that they face court-martial for their offenses. In a court-martial,
they had greater opportunity to deny OW explain all charges brought
againstthem, with benefit of counsel and with full advance knowledge
of the prosecution's case. They also faced the threat of a punitive
discharge and imprisonment. An accused soldier enjoyed at least as
many rights at trial as an accused civilian. Usually, his court-
martial took place very promptly, limiting pre-trial delays (and
therefore, confinement or residence at the PCF) to two or three months
at most.
There were three forms of court-martial. The Summary Court-
Martial consisted of a hearing officer (summary court officer) who
called witnesses for the prosecution and defense, rendered a verdict,
and adjudged sentence. The summary court adjudged no sentence greater
than confinement at hard labor (and then only if the accused was in
pay grade E-4 and below) for one month, hard labor without confinement
for 45 days, reduction to the lowest enlisted pay grade (except soldier's
in grade E-5 and above could be reduced only to the next inferior pay
grade), and forfieture of two-thirds of one month's pay. After 197 -
WAS
no confinement could be adjudged unless the accused represented by
counsel (as a consequence of the ruling by the Supreme Court in
Argisinger V. United States
). No transcript of the
trial was kept and there was no judicial review. However, a summary
court never sat in judgement without the express consent of the accused,
IV-C-32
who could refuse the court and leave to the convening authority the
decision whether to refer the charges to a higher court. Altogether,
16% of our applicants faced a summary court-martial at least once.
The Special Court, experienced by 54% of our applicants was
similar in composition and procedure to the General Court faced by
13% of our applicants. An accused facing a General or Special Court
was tried by a court of officers (jury) unless the accused specifically
requested that at least one-third of the court be enlisted members
(usually of higher rank). A military judge, since 1969, normally
presided over the trial, and the accused was entitled to request
that the military judge, alone, hear the case and adjudge sentence.
In the absence of a military judge, the President of the court of
members (the senior member) presided over the trial.
The accused was entitled to legally qualified defense counsel
after 1969. The service detailed a defense counsel to the accused,
and permitted him any counsel he requested by name, provided the
attorney was "reasonably available". Neither of these counsel was
at the expense of the accused. The accused could also have his own
civilian attorney. It was not uncommon for the defendant at a
Special CM General court to have more than one attorney as counsel,
often at no expense to him.
The rules of evidence were followed and a verbatim record of
trail was required an adjudged punitive discharge was to be affirmed
on appeal. Otherwise a summarized record was kept at special courts-
martial.
IV-C-33
The Special Court could adjudge no sentence greater than con-
finement at hard labor for six months, forfeiture of two-thirds pay
for six months, reduction to grade E-1, and a Bad Conduct Discharge.
As the Army did not routinely order a verbatim record be kept, the
Bad Conduct Discharge was adjudged only where the convening authority
expressly authorized the Special Court to adjudge a punitive discharge.
The General Court could adjudge any sentence, including death and
life imprisonment as authorized by the Uniform Code of Military
Justice or the Table of Maximum Punishment, as appropriate. It also
adjudged the Dishonorable Discharge in addition to the Bad Conduct
Discharge, although total forfeiture of pay and allowances were also
ordered.
IV-C-34
Altogether, 40% of our applicants stood court-martial for their last AWOL
offense.* About
of them pled "not guilty." All were convicted and all
but a few received punitive discharges. They were further sentenced to pay
forfeitures, reduction-in-rank, and imprisonment for typically five to eight
months. Their sentences were often reduced through the automatic review of the
Court of Military Review. Our court-martialed applicants' final sentences aver-
aged five months, with only 2% having to serve more than one year in prison.
Our applicants who were punitively discharged had their cases reviewed for
errors of law by a JAG officer responsible to the court-martial convening author-
ity. They were further reviewed for errors of fact or law by a Court of Military
Review (previously known as Boards of Review) and occasionally by the Court of
Military Appeals.
Few of our applicants voiced objection to the fairness of their trials, though
some complaints were heard.
(Case #00423)
Applicant, a Vietnam veteran, sustained some sort of eye
injury (probably in Vietnam) which caused his retina to
become detached. He is now nearly blind in one eye. At
trial, his counsel attempted to introduce the testimony
of his attending ophthalmologist to prove that he absented
himself to obtain medical treatment, not to desert. The
military judge refused to admit the ophthalmologist's
testimony, in the absence of independent evidence of its
relevancy. His decision was upheld on appeal.
Sentences under 30 days were usually served at the post stockade. Convicted
but undischarged AWOL offenders sentenced to more than one month of imprisonment
were transferred to the Army Retraining Brigade at Fort Riley, Kansas. Efforts
were made to rehabilitate the offender and enable him to complete his military
service successfully. However, many were habitual offenders. For others, military
* The percentage tallies for the three types of courts-martial add up to more than
40% because many of our applicants faced court-martial for more than one AWOL
offense.
IU-C-35
life became even more difficult after confinement.
(Case #356)
As the result of a two-month AWOL, applicant was con-
victed by a summary court-martial and sentenced to
confinement. After his release and return to his former
unit, he was constantly harrassed, ridiculed, and assigned
to demeaning work. He found this intolerable and he went
AWOL again.
Those who were pending punitive discharges and had received sentences of
over 30 days were sent to the Disciplinary Barracks at Fort Leavenworth, Kansas.
Approximately 170 soldiers were still serving their terms when the President's
Clemency Program was announced. They were all released upon their application
for clemency.
Effects of the Bad Discharge
All of our applicants had one experience in common: they all received bad
discharges. Sixteen percent received Undesirable Discharges for Unfitness and
45% received Undesirable Discharges in lieu of court-martial. Those who faced
court-martial and received punitive discharges received Bad Conduct Discharges (38%)
or Dishonorable Discharges (2%). In some states a court-martial conviction, parti-
cularly if a discharge or confinement over one year were adjudged, may impose the
same disabilities as a felony conviction in the civilian courts. Thus, some of our
applicants may have jeopardized their voting and property rights and the opportunity
to obtain certain licenses by virtue of their punitive discharge.
What was more important to our applicants was the effect of discharge on their
ability to get veterans' benefits and obtain a job. Some were caught in a downward
spiral: they could not afford to train themselves for a skilled job without veterans
benefits. Employers would not hire them for other jobs because of their discharge.
They then could not receive unemployment compensation because of their discharge.
(Case #08062)
Following his discharge, applicant sought employment in
the area of his military training as a finance clerk. He
wanted to study to become a CPA, but was financially unable
10-C-36
without benefit of the GI Bill--from whose benefits
he was barred. Finally he found employment as a
truck driver for small trucking firms and is now
earning $70 per week. He could have earned more with
the larger trucking companies but they refused to hire
him because of his discharge.
(Case #08232)
Applicant, a Vietnam veteran, was unable to find work
for his first month after discharge because everyone
insisted upon knowing his discharge. He finally found work
as a painter but was laid off five months later. Because
of his discharge he was denied unemployment benefits.
A number of studies have shown that employers discriminate against former
servicemen who do not hold Honorable Discharges. About 40% discriminate against
General Discharges, 60% against Undesirable Discharges and 70% against Bad Conduct
or Dishonorable Discharges. Many employers will not even consider an application
from anyone with less than an Honorable Discharge.
Before applicants could submit to any proceeding which might result in un-
desirable discharge, each was warned to the effect:
"I understand that I may expect to encounter substantial prejudice in
civilian life in the event a general discharge under honorable conditions
is issued me. I further understand that, as a result of the issuance of
an undesirable discharge under conditions other than honorable, I may be
ineligible for many or all benefits as a veteran under both federal and
state laws and that I may expect to encounter substantial prejudice in
/
civilian life."
Civilian courts have taken judicial notice of the less-than-honorable discharge
calling them
"punitive in nature, since it stigmatizes a serviceman's reputation, impedes
his ability to gain employment and is in life, if not in law, prima facie
evidence against a serviceman's character, patriotism or loyalty."
Stapp V. Resor, 314 F. Supp.
; accord, Sofranoff V. U.S., ; 165 Ct. C1. 47
478 (1964), Glidden V. U.S., 185 Ct. C1. 515 (1968), Bland V. Connally,
293 F. 2d. 858 ( Cir 1961)
/ AR 635-200.
14-C-37 -
The injury caused by the less-than-honorable discharge is particularly acute
in the case of our applicants who served more than enough time to have earned
veterans' benefits, and who obtained Honorable Discharges for the purpose of re-
enlisting, but who received bad discharges in their last period of enlistment.
These soldiers were often denied benefits just as the soldier given the stigmatizing
discharge prior to completing his first enlistment.
(Case #16332)
Applicant had four years, four months creditable service.
(Case #4793)
Applicant had 9 years, 10 months, 15 days creditable service.
(Case #0456)
Applicant had 8 years, 7 months, 20 days creditable service.
II e
IV. PCB APPLICANTS
D. CONCLUSION
FORD
FRALO
IV-D-1
D-Conclusion
100,000
An estimated 123,000 persons could have applied for clemency.
Only 22, 300 disciaply. applied Who were the 50,000 who did not? Why did they
fail to apply? What happens to them now?
Who Were They?
The following table identifies non-applicants in a very general sense:
Percentage of
Total Number of
Clemency Program Type of Applicants
Non -Applicants
Non-Applicants
PCB
Military - UD
89%
66,600
PCB
Military-BCD/DD
78%
19,400
PCB
Convicted civilians
77%
6,700
DOD
Military absentees
47%
3,800
DOJ
Fugitive civilians
84%
3,800
Total
82%
100,400
We know little more about their characteristics than what this table
shows. Discharged servicemen with Undesirable Discharges were the least
likely to apply, in terms of percentage and total numbers. This is
probably attributable to the fact that we mailed application materials to
eligible persons with punitive (BCD/DD) discharges, but were unable to
do so for those with Undesirable Discharges.
The Department of Defense had access to the military records of
its eligible non-applicants. Using these records, it could make comparisons
between its applicants and non-applicants. In most ways, they were
alike - - family background, AFQT score education, type of offense,
circumstances of offense, and SO forth. Only a few clear differences
could be found. Non-applicants committed their offenses earlier
in the War, they were older, and they were more likely to be married.
This implies that many may not have applied because their lives are
settled, with their discharges more a matter of past than present
concern.
Why did they Fail to Apply?
We can identify five reasons why eligible persons did not apply
for clemency. We have listed them below in order of the significance
we attribute to each of them:
Misunderstanding about eligibility criteria. Despite our
public information campaign, many eligible persons may never have
realized that they could apply for clemency.
Misunderstanding about the offerings of the program. Many
prospective applicants may have been concerned about the usefulness of a
Clemency Discharge. Others may not have known about the Presidential
pardons given to all applicants to our Board -- or they may not have
realized that our applicants were asked to perform an average of only
three months of alternative service.
Settled status. Others may not have cared about the kind of
discharge they had, or they may have been concerned that their applica -
tion would have made their discharge public knowledge.
FORD
Inability or unwillingness to perform alternative service.
Some individuals might have feared that if they quit their jobs to perform
alternative service, they would not get them back later. Many fugitives
in Canada had jobs and homes there, with chilren in school, so they might
have seen two years of alternative service as more of a disruption than
they were willing to bear.
General distrust of government. Unfortunately, some may
not have applied because they were afraid that, somehow, they would
only get in trouble by surfacing and applying for clemency. Some might
have been unsuccessful in pursuing other appeals, despairing of any
hope that a new appeal would be of any help.
Opposition to the program. Some might have felt, for
reasons of conscience, that only unconditional amnesty would be an
acceptable basis for them to make peace with the government.
What Happens to Them Now?
Civilians convicted of draft offenses and former servicemen
discharged for AWOL offenses will have to live with the stigma of a
bad record. They still have the same opportunities for appeal that
existed before the President's program -- principally through the
United States Pardon Attorney and the military Discharge Review
Boards -- but their prospects for relief are realistically remote.
Military absentees still in fugitive status can surrender them-
selves to civilian or military authorities. They still face the possibility
of court-martial, but it is possible that many will quickly receive
an Undesirable Discharge and be sent home.
Fugitive draft offenders can first inquire to learn whether
they are on the Department of Justice's list of 4522 indictments. If
they are not, they are free from any further threat of prosecution.
If their names are on that list, they can surrender to the United States
Attorney in the district where they committed their draft offense.
They will then stand trial for their offenses. Although there have been
exceptions, convicted draft offenders have been recently sentenced to 24
months of alternative service and no imprisonment. But they still have
a felony conviction, involving a stigma and a loss of civil rights.
We encourage those who did not apply to do what they can to
settle their score with the government. Likewise, we encourage
military and civilian authorities to be reasonably clement with them.
V
FORD
1
V. MANAGING THE CLEMENCY BOARD
CHAPTER V
Managing the Clemency Board
In following a case-by-case approach, we elected to give each
applicant's case a substantial amount of staff and Board
attention. To prepare a single case properly took much effort.
To prepare 15,000 cases properly took a large and dedicated
staff, a great amount of management effort, and significant
time.
Despite the size of this effort, we believe that our applicants
should receive an accounting of why they usually had to wait
six months for their clemency offers to be announced by the
President. Were it not for the many thousands of cases, and
the time-consuming procedures we chose to follow, the waiting
time would have been much less. Because our applicants were not
present during our process, we demanded high standards of fair-
ness, accuracy, and consistency to protect their rights and
interest. * We did our best, nonetheless, to compensate for the
time-consuming nature of our process.
What we gained from this process was experience in crisis or
"adaptive" management--experience which we think may help
managers of comparable organizations. Heretofore, few Federal
enterprises have had as tangible a mission and as clear a
deadline as our own -most Federal agencies operate on a much
different basis. This "crisis" management may become more
commonplace as it becomes more widely recognized that unending
government involvement is not always the right formula for
I-2
solutions to temporary problems. Through crisis management,
reasonable solutions to temporary problems can be accomplished
in a brief spurt of energy--without the need to create expensive,
undying bureaucracies.
Management experts often claim that government could work better
if it would pattern itself more after private enterprise.2/
To do this, a government agency must often have the ability to do the
following: (1) To spring into action immediately upon request,
with little or no time for advance planning; (2) to set clear
goals whose achievement can be monitored as a measure of
performance; (3) to identify staff and other resource needs
quickly and accurately, obtain them promptly, and apply them
flexibly; and (4) to reduce in size as soon as staff is no
longer needed. We were fortunate to have these abilities, and
we expect that other crisis enterprises would also. We are not
sure that we used them to full advantage, but we could not have
met the President's deadline without them.
In this chapter, we described our management experiences during
our twelve months of operations. During that year, we generated
21,000 applications, 3/ recommended 15,500 s case dispositions
to the President, and referred 500 cases with incomplete files
to the Justice Department for further action. Extending from
*See Chapter
V-3
September 16, 1974, to September 15, the year was split into five
distinct phases:
(1) September through December -- our policy formulation
phase, during which very few applications were received,
with our Board concentrating on developing policies and
procedures.
(2) January through March --- our Public Information Phase,
with our Board and staff concentrating on informing the
American people about our eligibility criteria.
(3) April and May -- our expansion phase, as we grew by a
factor of ten to accomodate our mid-summer case production
requirements.
(4) June and July -- our peak case production phase, with
our staff producing cases and our Board deciding them at
a rate of over one thousand cases per week.
(5) August and September -- our contraction phase, as
we finished our "clean-up" production tasks while re-
ducing (and eventually disbanding) our staff.
1. September through December --- Our policy formulation phase
In the early days of our mission, we had little idea of what lay
ahead. Our nine-member Board concentrated on resolving key policy
issues: Setting the baseline formula, determining aggravating and
mitigating factors, and recommending categories of case dispositions
to the President.
5,000 applicants were found to be ineligible for the President's
Program. See Chapter
.
V-4
Initially, we had a staff of thirty , approximately one-half of whom
were attorneys, detailed from permanent Executive Agencies. The
staff quickly developed a process for handling applications and
presenting cases to the Board. That process was time-consuming, yet
high standards of quality were strongly emphasized. It was also rather
informal, well-suited to a small staff with a moderate workload.
During this period, we were developing our rules and testing our
ability to apply them. We learned that using our aggravating and
mitigating factors just as informal guides was not enough; some
clearly inconsistent case dispositions resulted from that practice.
Therefore, we decided to apply our baseline formula and aggravating/
mitigating factors very explicitly. After every case, we determined
not only the actual disposition , but also the factors which were
applicable. Based upon our new rules, we reconsidered our first few
cases, with significantly different results. The Board was usually
able to reach a consensus, despite the diversity of our respective
background
Our management structure was very informal, as one might expect from a
small, new organization. Almost everyone on the staff had some case
production responsibility -- either processing applicants, writing
case summaries, or sitting with the Board as panel counsels. Each
case received individual attention from our senior staff. Aside from
its review of casework quality, the senior staff concentrated much
V-5
less on mangement than on substantive policy issues. Regulations had
to be drafted, and our Board needed substantive help with major
questions of policy and procedure.
During those early months, we developed the basic elements of the
case production process which we followed throughout the year, with
surprisingly few modifications. Our administrative staff developed
a procedure for processing applications. Our case summary evolved into
a format which we found useful--and which resisted change throughout the
year. We introduced a quality control staff into the system in
December, to review case summaries and assure the accuracy and im-
partiality of case attorney's work. The presentation of cases before
the Board was done in much the same manner as it would later occur;
each case however, received about 15 minutes of Board time -- something
which would prove impossible during our peak production phase.
We achieved something of a balance in our operations: Our 8 - 10 case
attorneys could each produce roughly a case a day, and our Board could
decide about 30 cases per day. With the Board meeting two or three
days every two weeks, we processed cases at the steady rate of about
150 per month. With an estimated final workload of not much over
1,000 cases, we expected to be finished by spring. In such an informal
organization, we saw no need to set goals, implement informaion systems,
or monitor case inventories at different stages of our process. In
many ways, we resembled a moderate-sized law firm.
I-6
Our primary management goal in those early months was to submit.
a reasonable number of case recommendations to the President by
late November. Our purpose was to give the President the opportunity
to announce case dispositions quickly, in order to alert prospective
applicants about what they were likely to receive from the President's
program. Around Thanksgiving, the President signed warrants for the
first 45 cases.
We expected that the Presidential announcement of case dispositions
would stimulate more applications. It did not. We also expected
that around Christmas time, many eligible persons would sense the
approaching deadline and apply. That, too, did not happen. By the
year's end, we had received application from only 850 persons, less
than 1% of those eligible. Our Board had already decided over one-
fourth of those cases, and we expected to be finished by April.
V-7
2. January through March -- our public information phase
As the Board heard the first few hundred cases, we began to realize
the limited educational background of many of our applicants. Through
informal surveys and other means we developed some doubts about the
extent to which the American public -- and especially our prospective
applicants -- understood our eligibility criteria. By mid-December,
the need for public information campaign was apparent. Plans were laid
and materials were readied. By the second week in January both the
Board and the staff concentrated on spreading the word about our
eligibility criteria during the next three months. *
We were not particularly well-equipped to run such a campaign; our
public information staff numbered only three, and our funds for
travel and information materials were quite limited. Lacking staff
and dollar resources; we relied on others to mail letters to our
applicants, send tapes to radio and television stations, and so forth.
Almost everyone on the Board and staff participated in the public in-
formation campaign. The Board cancelled half of its scheduled meetings
throughout January, February, and March to allow some of us to spend
time spreading our eligibility message in major cities across the country.
Our staff, now numbering about fifty, planned future public information
activities while endlessly stuffing envelopes.
By late January, thousands of letters and phone calls were received
from applicants who had just learned of their eligibility. For
I-8
weeks at a time, our staff attorneys set aside their casework to man
the phones and respond to the letters.
Because of this, and despite our slowly enlarging staff, case pro-
duction fell to less than 100 per month. Our administrative
staff fell days behind in its efforts to count and log new applica-
tions. Much of the administrative work had to be done by volunteers.
In fact, these non-professional volunteers had to be relied upon to
read mail from applicants and determine their eligibility. **
We realized that our late April target date for completing our work
had become unrealistic. However, during January and February we
could never make accurate estimates of what our final workload would
be. We always had boxes full of uncounted mail and drawers full of
telephone inquiries from persons whose eligibility we could not
determine. We never were sure when -- or whether -- our application
rate would peak. Until early March, we could only speculate about
how long the President would allow us to accept applications. As
shown in the table below, our workload estimates were never more than
a few thousand cases more than the applications we had in hand at the
time:
*See chapter
for a description of our public information cam-
paign.
*Many of these eligibility determinations later proved to be inaccu-
rate. At the time, we only had staff attorneys review letters from
applicants considered ineligible by the volunteers. Of the 18,000
presumably eligible cases logged in by the end of our application
period, 2,000 were later found to be ineligible.
I-9
DATE
APPLICATIONS
WORKLOAD
COUNTED
ESTIMATE
January 1
850
1,000 - 1,500
February 1
4,000
5,000 - 6,000
March 1
10,000
12,000 - 14,000
April
15,000
16,000 - 18,000
April 15
18,000
18,000 - 20,000
It was not until February that we acknowledged that we either
had to grow in size or streamline our process to get our work done
in a reasonable time. In hindsight, it was not until mid-March that
we came to realize the true dimensions of our task. Even then, there
was little sense of crisis about our looming production problems.
When top staff was not busy directing the last weeks of our public
information campaign, it had to focus on the day-to-day needs of our
severly-strained administrative staff. There seemed to be little
time for long-range planning.
By late March, our staff had grown to almost 100, but only 500 cases
had been processed through the Board. Based upon staff and pro-
cedures, one projections went that we would finish our workload no
sooner than 1978. However, we recommended to the President that he
set a deadline of September 15, 1974 (giving us a total life-span
of exactly one year) and that he authorize the doubling of our Board
and the expansion of our staff to approximately 600.
** Many applications postmarked by March 31 were not counted until
mid-April.
I-10
3. April and May -- our expansion phase
By early April, we had a reasonably accurate workload projection, a pro-
mise of a six-fold increase in staff size, and a September deadline. We had
to be working at full speed by mid-May to finish on time. Within six weeks,
we had to develop a management planning capability, implement a new manage-
ment structure, and assimiliate hundreds of new personnel. In the midst of
all this, we had to move our quarters across town.
A management analysis staff was quickly formed. We recognized our need
to set both short-term and long-term goals and to have information to enable
us to measure goal achievement and timely completion of our effort. Giving
ourselves a one-month margin of error (and basing our projections on a high
estimate of 20,000 cases), we set weekly production goals starting at about
1,200 cases -- peaking at 1,600 cases --- for the key aspects of our case-
writing process. A new management information system, focusing on those
same key aspects for which we set goals, was implemented to replace our by
then very overloaded reporting systems.
The management analysis staff also identified ways to improve the
efficiency of our production process. Individual staff analysts were
assigned to monitor each of the process. They developed intraphase in-
formation systems, productivity aids, and inventory control mechanisms.*
Our process was very flexible, and our line staff was responsive to sug-
gestions. This was our one chance to make fundamental process revisions;
once our staff stopped expanding, it became more resistant to change.
Our efforts to review and modify our case production process were
boosted by an Inter-Agency Task Force sent by OMB to review our resource
needs. Our top staff (including most of our staff analysts) were lawyers,
*See Appendix
for a description of the analytical tools were were
applied.
III
and the Task Force members were high-level managers, Our two weeks to-
gether gave us a greater management orientation; indeed, those two weeks
were the ones in which we mobilized our staff and started achieving our
once hypothetical goals. However, we were reluctant to apply and short-
cuts which would affect the fair process our applicants deserved.
Our new planning capability arose at the same time we were expanding
our line management structure. In early April, we decided that we would
keep the basic elements of our case disposition procedures: Narrative
case summaries, quality control, case attorney presentations to the Board,
and the presence of experienced panel counsels during Board deliverations.
Therefore, the only persons experienced enough to be line managers were
our original eight case attorneys. Most had never managed before, yet
each would soon be responsible for a staff of sixty. They also had to
designate a number of newly-hired duputies who would have immediate
responsibility for teams of 6-8 case attorneys.
The scenario was this: Brand new staff attorneys were asked to super-
vise small teams of other brand new staff. Experienced attorneys who be-
fore had largely just prepared cases were now each the supervisors of 40
professional and 20 clerical staff. Two formerly middle-level managers
now were responsible for a mini-agency of almost 500 people. The General
Counsel,* * his Deputy, the Executive Secretary, and their aides -- all
lawyers --- had to assume the roles of exsutive-level managers.
*Our General Counsel was Staff Director.
I-12
All of our senior staff were in their twenties and thirties, and be-
cause of differing abilities to adapt to new situations, GS-13's sometimes
found themselves reporting to GS-11's.
It was into this new management swirl that our new case attorneys
came. At the requestof the President, and with help from OMB, two "taps"
for professional and clerical personnel were made of permanent executive
agencies. Since we had no "slots" through which to hire our own preferred
people, we had to borrow ("detailed") employees from other agencies. In
addition, we put to work over 100 summer legal interns hired and referred
by other agencies. One tap was made in early April and the other in early
May -- but, in each case, most personnel came three to four weeks later,
It was not until late June that our early-May tap for clerical personnel
was filled. At the time, we were concerned about the slowness with which
we were able to expand; -in hindsight, we might have faced greater management
and morale problems if we had gotten new staff in bigger bunches.
A training manual was prepared which provide information concerning the
Clemency Program in general, and the procedures for writing cases in
particular. Certain operational memoranda were included in the manual, but
they rapidly became obsolete as experience forced the evolution of the process.
Our earliest mistake in the communications area occurred at this stage:
Changes were implemented rapidly and met with reluctance on the part
of our staff, which had once been informal and collegial. Because of our
prior informality, many of our early procedures and rules were maintained
V 13
and amended orally. Had we to do it again, we would probably implement some
sort of formal directive system.
Training sessions, lasting a day, were instituted upon arrival of
personnel. Team assignments were made after these sessions.
The training process was meant to be primarily an overview both
of the legal process and of our general mission. It was anticipated that
the team leaders, and their slowly emerging internal team structures, would
provide the continuing training necessary to fully integrate new personnel.
This was successfully accomplished in some cases and scarcely attempted in
others, reflecting different managerial styles.
When the process of building and training attorney teams had been
completed, our organizational structure had become more formally pyramidal.
With our increase in size came an increase in the diversity and complexity
of tasks and roles. The senior staff, including the two primary line
managers, eight team leaders in charge of case writing teams, one team leader
in charge of all Quality Control attorneys and other planning, management,
and administrative managers numbered, at the peak, some twenty-five people.
In addition, each of the eight teams divided into sub-teams, under the di-
rection of emerging assistant team leaders. The optimal span of control -
the number of persons that any one supervisor was able to manage --- was found
to be approximately six, one serving as a principal deputy. The more success-
ful teams also selected one of their clerical personnel to generally supervise
the operations of the support personnel.
The slowest part of the development of the managerial structure proved
to be the development of internal team structure. Some team leaders were
slow to promote assistants, to delegate authority and responsibility. The
senior staff felt that team leaders rarely utilized assistants fully. As
a result, the team leaders were uniformly overworked during peak periods.
V-14
and could not adequately command or control all facets of their operations,
nor respond fully to the demands of the senior staff. Notwithstanding the
shortcomings imposed upon them by their lack of experience as managers of
large staffs engaged in a crisis task, these managers generally performed
adequately, and in about half of their number performed very well, adapting
to the physical and emotional pressures of our operation with alacrity.
Our attorney staff was, on the whole, dedicated and competent, with
many persons showing exceptional professionalism. On the other hand, we
found that many of our lower grade detailed clerical and administrative
personnel were poorly trained and unentnusiastic. Absenteeism
among this group was high, and production low. However, those who served as
executive secretaries proved to be as diligent and as professional in
their work as our best attorneys.
During May and June, our management analysis staff carefully monitored
attorney case summary production, through the use of a simplified management
information system. In this information system, information on individual
case production was funneled from the lowest level of the staff to the
highest, becoming increasingly aggregated. This data was assembled with
information from different production stages to produce a flow-type picture
of our operations. The information system was implemented, monitored, and
revised by the analytical staff responsible for interpreting the findings.
Senior staff and team leaders alike were able to use this information to
gauge both organizational and individual accomplishment of goals.
A careful review was made of every step taken by a case attorney as he
prepared each case summary. Based upon these findings and an application
of "learning curve" theory, a target case attorney "learning curve" was set:
Two cases the first week, four the second week, six the third, and eight every
week thereafter. Instead of our target 2-4-6-8, (and the 2-5-7-10 which the
I-15
Inter-Agency Task Force thought possible), our actual learning curve was
2-3-5-6. Summer legal interns were found to have a better learning curve
and a higher production peak than detailed government attorneys. Learning
curve calculations were made for each forty-person case attorney "team" with
surprising differences in the results. The two most productive teams had
learning curves of 2-6-10-12 and 2-6-8-8, while the three least productive
teams were all unable to produce more than three cases per week per attorney.
The worst learning curve was 1-2-2-2. Surprisingly, we also found that the
most productive teams also did work of better quality than the least pro-
ductive teams. Staff assignments were made randomly, and working condi-
tions were identical. Therefore, we attributed the differences in pro-
ductivity to the management styles of the team leaders.
Our best managers turned out to be the more aggressive individuals.
They had set a heavy pace for themselves in their earlier work on our staff,
and that same pace was apparently picked up by their new staffs. They had
set high goals for new case attorneys -- usually ten or twelve cases per
week -- and spent most of their time with those who were new or having
trouble. On some teams a laissez-faire attitude contributed directly to low
production. Most of the better managers quickly appointed enough deputies
to keep the span of control at 6-8 persons per supervisor, and they began
delegating responsibilities liberally. The less productive managers delegated
much less and had an insufficient number of deputies. Those who were better
case attorneys tended also to be better managers, but prior experience and
civil service status did not seem to matter. Figure D compares each team on
the basis of a number of performance factors. As one can see, leadership
in one case tended to lead to good results in others.
Many of our new case attorneys were startled by our emphasis on production.
Despite some disenchantment from government attorneys not comfortable with
I-16
casework quotas, the entire staff respond well to the notion of team and
individual goals. Our top staff held weekly production meetings with the
eight team leaders, reviewing productivity changes and identifying team
production problems. The team leaders were told how their teams ranked,
and management principles were shared. The production meetings kept the
good teams good and made the bad teams acceptable, but the middle teams'
production levels remained unchanged. By plan or by coincidence, production
rose to the 1,200 per week levels we knew we had to maintain to meet the
President's deadline.
The quality of our new staff was good--indeed, better than we ex-
pected, given that we had no chance to screen them initially. We had
feared that many agencies would send us their unproductive people.
Very few did. What we got instead were adaptable "shock troops," ready
for new responsibilities and new experiences. Indeed, most would not have
come unless they were of a mood to enjoy a crisis atmosphere. More ex-
perienced, more professionally capable, but less flexible detailees would
not have performed as well. We could not have met our deadline without a
staff willing to cooperate with young, inexperienced managers -- and able to
tolerate some very difficult working conditions.
Our Board was expanded to eighteen members in late April.* Like the
staff, we had to accustom ourselves to a much faster pace of work. If any-
thing, the pressure on us was greater: Our number of case attorneys expanded
from 10 to 300, while we only doubled in size. In March, the nine-member
Board had begun to make case dispositions in panels of three. We were
satisfied with the quality of the dispositions, but no panel had by that
time decided more than 50 cases in a single day. We had to double that rate.
*Ten new members were added, one of whom filled vacancy left by the resignation
of Board member Robert Finch.
V-17
This was impossible during the first several weeks, while our new members
were familiarizing themselves with our range of cases. Nonetheless, most
panels exceeded 100 cases per day by the end of May. With three panels
meeting four days each week,* our Board output began matching -- and some-
times exceeding -- staff output of 1200 per week.
As our Board panels increased their decision-making pace, we were only
able to spend three or four minutes per case. This left little time for
case attorneys to make oral presentations. Usually, those presentations
focused on mitigating evidence. Also, we had inexperienced deputy team
leaders sitting as panel counsel during many of our sessions. They were
not well-versed in Board policy, so they were unable to play the panel
counsel's presumed role of assuring that we followed our rules scrupulously.
As a result of these factors, different panels began applying different
rules -- and our dispositions gradually became more severe. Many Board
members began referring cases to our Full Board because of disagreements
over our policies.
We could not slow down our pace, nor could we meet our deadline by
having so many cases heard by the Full Board. Instead, we took the following
steps: (1) We held more frequent Full Board meeting to discuss and define
our policies; (2) we created two new aggravating factors, a pardon rule,**
and a no clemency rule*** to clarify as Board policy what a number of panels
were inclined to do with or without any rules: (3) copies of the newly-
created Clemency Law Reporter were distributed to the Board and staff, with
explicit definitions of Board rules and precedents; (4) our top staff held
workshops to instruct panel counsels in Board policy; and (5) at the
*The fifth day was set aside for reading case summaries.
**The pardon rule was that civilian cases in which the applicant -had con-
scientious reasons for his offense would receive an immediate pardon,
in the absence of serious aggravating circumstances.
***the "no clemency" rule was that any applicant who had been convicted of a
violent felony would be denied clemency, in the absence of significant mitigating
circumstances.
I-18
instruction of the Chairman, our staff implemented a computer-aided review of
Board panel dispositions.* Thereafter, our case disposition procedures worked
much more smoothly. We still heard over 100 cases per day, with referring so
many to the Full Board.
4. June and July -- our peak production phase
By early june, our estimated total caseload was still over 18,000. Our
case attorneys had prepared only 4,000 case summaries, and our Board had
heard less than 3,000 cases. We had to maintain our pace of the last week of
May throughout the summer.
Based upon the production levels which our staff was not confident that
we could meet at each stage of our process, we revised our weekly and monthly
goals. Our top staff considered but rejected the idea of preparing an explicit
work plan for the remainder of the program. Had a work plan been prepared for
June during May, it would alfready have been outdated. Each week involved too
many uncertainties we thought, to permit long-range planning.
Our need to respond quickly to production problems led to a revision on
our management information system. "Need to know" was culled from "nice to
know" as our staff concentrated on accurate reporting of production tallies and
inventory counts at a few key stages of the process. Time-consuming produc-
tivity analysis was no longer done. Rather than look just at the case attorney
production point, attention was now focused on other key production points
and the smoothness of our work flow.
One point which had been ignored previously was our file room. By June,
it was running out of new cases to give our case attorneys. Without enough
work to do, production goals were meaningless. Our staff morale started to
flag, as rumors spread that case attorneys would not have enough work to keep
*See Appendix for a description of our computer-aided review of Board
dispositions.
V-19
busy for the rest of the summer. The summer legal interns were so pro-
ductive that it was never again to be possible to give case attorneys more
work than they could finish. Through greater management attention, the
immediate file problem was solved --- but our whole management emphasis
changed as a result.
Instead of focusing on case production goals, our top staff concentrated
on steering clumps of existing cases through the process. The management
analysis staff developed a "pipeline" inventory count to identify production
log jams on a weekly basis.* Pipeline analysis replaced productivity analysis
as the basis for production meetings throughout the rest of the summer.
Case flows from point to point were closely monitored, and an expanded
number of aides to top staff began to trouble-shoot in problem areas. Un-
fortunately, each pipeline "snapshot" required at least one and usually two
days of staff time to collect and analyze data, making the information old
before it could be applied. Occasionally, daily updates had to be made before
any corrective actions could be taken.
The most serious inventory control problem of the summer related to the
docketing of cases for the Board. During June, the case attorneys continued
to produce case summaries at the rate of 1,200 per week but the Board panels
were deciding cases at the rate of 1,500 per week. Eventually, the docketing
staff was left with no case inventory, and Board members were receiving case
summaries too soon before scheduled panel meetings to allow them to be read
first.
What had created this problem was a previously-unmanaged interface among
all parts of our production process at the docketing stage. To solve this
problem, one manager was assigned to a newly-created Board Interface Unit.
*See Appendix for a description of our pipeline analysis.
8-20
New docketing procedures were developed, with cases batched in "docket
blocks" according to fixed Board panel schedules. ** To solve the immediate
problem, the Board heard very few cases during the Fourth of July holiday
week. Thereafter, our docketing inventory was carefully controlled.
To solve this and other pipeline problems, we had to be flexible in
our use of personnel. In particular, our clerical and administrative
staffs had to be ready to do new tasks at short notice. By July, individual
production teams (consisting of an assistant team leader and the 6-8 case
attorneys supervise by him) began to be assigned to special production or
administrative problems.
Staff morale began to be a problem -- one which never could be solved.
The pressure on case attorneys to write case summaries began to ease. Our
earlier policy of discouraging staff vacations until August (to insure that
the workload would be finished on time) began to backfire. Some case attorneys
were idle. Others resented the "pressure-on, pressure-off" style of manage-
ment which was the unavoidable consequence of our emphasis on inventory con-
trol rather than on simple production levels. Still others resisted reassign-
ment to administrative tasks. Our 100+ summer legal interns, in particular,
resisted the notion of doing non-legal work. Absenteeism was becoming a
problem, but one which we failed to reconize adequately until late in
July.
There was little that the top staff could do to provide case attorneys
and other staff with incentives and rewards for good work. Only the detailing
agencies could grant promotions and quality step increases. Performance bonuses,
although possible, were hard to arrange. No funds were available to improve
working conditions, which were tolerable but less comfortable than most staff
had enjoyed at their agencies. Staff contact with our Board was usually limited
*See Appendix for a description of our case docketing procedures.
I-21
to very brief case presentations. The one major source of motivation was
the understanding, common to all our staff, that the President's Clemency
Program was helping people.
Throughout June and July, our Board heard cases as quickly as they
could be docketed. Clear policies had been set, and all rules were being
followed. Case dispositions were steady from panel to panel and from week
to week. Case referrals to the Full Board continued, but at a slower rate.
A five-member special upgrade panel was created to make unnecessary the re-
ferral to the full Board of cases involving recommendations for veterans
benefits.
Other than fatigue, the major problem confronting our Board members was
the fall-out from the July dip in staff morale. Many case attorneys broke
from the standing fule of impartiality and began advocating an applicant's
case in the manner of an adversary attorney representing a client. This
could not be allowed, but two other actions were taken: First, case attorneys
were given the opportunity to "flag" cases which they believed were decided
incorrectly; these cases were then reviewed by the legal analysis staff (just
as they reviewed cases flagged by the computer) and referred to our Chairman.
Second, the Clemency Law Reporter became an in-house professional journal,
providing a forum for case attorneys to bring policy questions to the attention
of the top staff and Board.
V-22
5. August and September - Our Contraction Phase
As we entered August, our September 15th deadline began to appear
reachable. Two factors had contributed to this. Our production levels
had been high throughout June, and had eased in July only because of the
lack of new assignable cases. Total case summary production exceeded
12,000 by the first of August. At the same time, our final caseload
estimate fell below 16,000. In May, our estimate had been 20,000 cases.
What had happened, a bit at a time, was this: First, we discovered that
2,000 clearly ineligible cases had been logged in by our volunteer
letter-openers during the hectic days of March and April. Second, almost
2,000 would-be applicants had given us little more than their name
and address
on their application forms (despite our letters), SO
we could not order files to have their cases prepared. Third, some 500
case files had been lost by the military or were otherwise unavailable,*
making it impossible for our Board to review those cases.
In some ways, we were almost finished; in other ways, we had
hardly begun. Many of the 3,000 + cases we had left were our hardest
ones, many of them requiring time-consuming inquiries to obtain needed
information. We also had roughly 500 cases which were "lost" from our
audit process, never showing up in our weekly pipeline count until the
last week of panel hearings. Also, by the first of August, we had
still sent less than 1,000 case recommendations to the President. We
had to solve these problems, write our final report, close up our agency,
and plan a carry-over operation in the Department of Justice. June vaca-
tions, once postponed until August, now were sent for October.
*These cases were later referred to our carry-over unit in the Department
of Justice.
Not all of our remaining cases were "hard;" we still needed two weeks
of normal case attorney production. To spur last-minute production, all
case attorneys were advised that cases not submitted to quality control by
mid-August would be referred to the Department of Justice carry-over unit.
Rather than lose the chance to present their cases, attorneys completed
their case summaries on time. To complete the "hard" cases, a special team
responsible to top-level staff separated them into categories of possible
and impossible. Later, case attorney production teams were assigned to
write summaries on all cases (including impossible ones) based upon the
information available at the time. These became "purple docket" cases,
set aside from all others and heard by a special Board panel. Many were
decided, but several hundred had to be referred to the carry-over unit
for further action.
The "lost" cases had not been included in pipeline inventory counts
either because they were in transit, held by an absent employee, or just
plain lost. In late July, a month-long search for "lost" cases was begun.
Because of the speed with which case files and other materials had to be
circulated for production deadlines to be met, a system-wide logging pro-
cedure was needed to allow every case file to be traced to one source.
Without it, the entire attorney staff had to engage in a one-day physical
search of our two buildings at our firstdeadline for the completion of
cases. The staff had to account for every one of our 18,000+ logged cases,
with case files changing hands all the while. Eventually, our 500 "lost"
cases were reduced to around 50, which were assigned with the "hard" cases
to the Department of Justice carry-over unit.
Forwarding cases to the President was our last major management
problem. This was an aspect of our operations to which we had previously
given little attention, but which loomed as an almost impossible job.
Contributing to the delays in forwarding cases to the President had been
the "30-day rule"* and the two-week turnaround time for the computer-
aided review of case dispositions. By late August, we had to prepare
master warrants involving over 3,000 cases per week -- a very staff-
intensive job. To do this, we assigned all case attorneys not responsible
for "hard" cases or working on other special task forces. With this
awkwardly large and often unwilling staff of almost 100 case attorneys,
our administrative staff was able to forward the bulk of the case recommen-
dations to the President on September 15. Some procedures were simpli-
fied --- but we really attempted to solve this problem more by phalanx then
finesse.
Our staff size, over 600 through most of June and July, gradually
shrank to 400 during August. Approximately 50 detailed attorneys were
returned to their agencies around the first of August as our caseload
diminished. Our 100+ summer interns went back to school, a few at a
time, through Labor Day. A few others had their details expire, but were
not replaced. As our deadline grew near, final-stage production problems
could be solved better by large doses of staff than by careful management
planning. Therefore, we were reluctant to phase down in staff size any
more quickly than we did.
August and September also witnessed the preparation of our Final
Report --- and of plans for the carry-over unit in the Department of
Justice. In that carry-over unit, about 120 persons (mostly administrative
staff) would work until November 1. Records had to sent to the archives,
*Applicants had 30 days to respond to their case summaries before any case
recommendations became final and could be forwarded to the President.
See Chapter
I-25
final paperwork had to be completed, and applicants had to be allowed 30
days to appeal their case dispositions. Otherwise, the work of the staff
was done.
Our Board panels heard all- their cases by the end of August, with
one panel day in mid-September for loose-end and tabled cases. The Full
Board agenda had accumulated throughout the summer -- the one case inven-
tory which was not controlled -- and the Board had to work without rest
through the latter part of August and September to complete its docket.
In mid-August, the full Board began to hear cases referred by the Chairman
as having been flagged by the staff as statistically inconsistent through
both computerized and personal reviews. The Board also began to review
requests for rehearing from action attorneys at this time, but the two
types of review overlapped almost 80%. In most cases, the rehearing
resulted in a case disposition more in line with perceived Board precedent.
I-26
CONCLUSIONS
In a sense, our perception of the clear split among the five
phases of the Clemency Board operation comes from hindsight. While
we anticipated the last two management-intensive phases -- for
example, we had carefully devised close down dates for case-writing
and panel and board hearings
--
we often had to deal with problems on
an ad hoc basis. Our management techniques were developed in response
to those problems.
We were fortunate in this enterprise to have had a particularly
adaptable staff resource base. The utilization of this resource base,
perhaps more than any other characteristic, epitomized the "crisis"
management aspect of our work. Not only did the size of the staff
undergo major changes, swinging from 100 to 600 people in six weeks,
but the distribution of staff resources shifted radically as we moved
from one phase to another. The beginning of the production-intensive
phase IV saw eight teams, totaling 280 attorneys and interns, engaged
attorneys
in the case-writing process, 40/in line supervisor roles, and 23 in
quality control. By mid-August, this had ended. Basic team or sub-
team units worked as problem-oriented task forces on staff-intensive
problems such as finishing correspondence, awaiting case files, writing
information packets for carry-over handling of clemency recipients,
and writing "hard" cases. Another group of 100 or SO had joined the
V-27
regular administrative personnel in preparing the Presidential packets.
Figure A illustrates these personnel shifts.
This flexible resource response was vital, in every way, to the
completion of the program. We had anticipated shifting workloads from
the earliest planning stages. Figure B shows our changing projections
of workload and the eventual overlapping of the major aspects of our
production process. The chart shows the relationship between our
declining caseload estimates and our actual production accomplishments.
What we did not expect, and what later charts show, was the sharp phas-
ing and the degree to which the misdirection of a single resource could
contribute to backlogs and "lumps" in an otherwise smooth production
process. Figure C is drawn from our weekly pipeline analyses through
August 19, and from other reporting figures thereafter. It shows
this peaking of critical production phases and the delays between per-
ceiving and resolving problems. Had the curves been entirely parallel,
operations would have probably been smoother than they really were.
For example, the irregular "file" curve--the one which shows the entry
,
of military files into our production system, contributed directly to
the irregular "production" curve. While we had planned for steadily
increasing production, peaking at 1600 cases per week, by early June
our production caught up with the entry of files into the system. Case
attorneys, who had been asked to produce nearly 1600 cases per week,
were unable to obtain enough files to accompany the level of production.
7-28
Our rate of production, in other words, was limited by our input of
raw materials. This had two results: Lowered morale, because of the
drive for ever higher production which was thereby made nearly impos-
sible, and a lengthened production (or case-writing) time. Instead
of finishing a predicted 20,000 cases by August 15, we completed the
real, lower complement of 15,500 cases on September 1, two weeks later.
Our flexible resource use created significant personnel conflicts,
high anxiety below the management level, and severe strains on the
morale of staff shifted from one part of the organization to another.
One of our major failures here was in communicating the "whys" along
with the "wherefores" down to the staff level. Much of the breakdown
in communications came at both the primary and secondary line supervisor
levels. While senior management and top line supervisors felt approxi-
mately the same level of anxiety or concern at any given time, this
concern was often not communicated down past the next level. In order
to circumvent this problem--and the inexperience of our own line managers--
we would have benefitted from some sort of general "gripe" session with
the senior staff two or three times a week. This would have brought
the entire staff into the decision-making process on at least a psycholog-
ical level. We should also have admonished line supervisors to provide
explicit written communication to supplement word-of-mouth.
Maintaining staff morale was very important in this sort of unpre-
dictable, push-and-pull production operation. It was also the one task
that we found to be almost unsolvable once we had recognized it. We
V-29
had started with a small staff with fewer than 40 people, with a very
high feeling of camaraderie and esprit-de-corps partly because every-
one could see others, even at the top management levels, taking part
in every sort of function. It took us a long time to recognize that
others, coming in to this organization as it expanded, might not get
that feeling. For example, what started out on May 1 to be an excit-
ing chance to perform a real legal service as a government lawyer may
have ended, on September 15, with the same person filing or checking
the spelling on some 5000 warrants to the President. Even lawyers
were needed for the administrative tasks. As we neared the end of the
program, absenteeism from fatigue and lowered morale became a real
problem, especially among low-level clerical help. Our only remedy, in
a world of imperfect supervision, would have been daily monitoring of
time and attendance. It was a function that we failed to perceive as
necessary simple because of our inexperience with this peculiar type
of situation.
Our Board operations were also affected by the different pressures
of the five phases of our year's work. As shown in Figure D, our case
disposition patterns were different from phase to phase. In the early
phases, we were developing policies and procedures, so our approach to
cases often changed from meeting to meeting. Hence, the pardon rates
for civilian and military cases fluctuated considerably. As the Board
began to meet in panels (and particularly after it expanded to eighteen
members), the pardon rate increased at first. However, it soon began
V-30
began a several-week-long declining trend, as case dispositions began
to be made on a 100-case-per-day basis. Once we became more accustomed
to our new docketing and case disposition procedures, the pardon rate
levelled off. Case dispositions varied little during the peak months
of July and August. By late August, fatigue was beginning to affect
Board members personally, but it apparently did not affect our case
dispositions.
PHASE I
PHASE II
PHASE III
PHASE IV
PHASE V
600
INTERNS
500
400
ADMIN
300
200
ATTORNEYS
100
CLERICAL
MANAGEMENT
SEPT
OCT
NOV
DEC
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
FIGA - PERSONNEL DISTRIBUTION
PHASE I
PHASE II
PHASE III
PHASE IV
PHASE V
20
Ez
IN
EL
15
's)
CASES (1000
10
WORLLACO PROTECTION
FILES OBTAINED CASE the CASES TO REPRESENTATIVE PR
5
0
SEPT
OCT
NOV
DEC
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
FIG.B- PROJECTED WORKLOADS AND
PRODUCTION TIMETABLES
PHASE I
PHASE II
PHASE III
PHASE IV
PHASE V
6
1090
4593
965
5
4
0
3
APPLICATIONS (MONTHLY).
0
CASES (1000's)
2
FILES
CASE PRODUCTION (MONTHLY)
BOARD DISPOSITIONS.
0
RECEIPT OF
PRESIDENT
1
SEPT
OCT
NOV
DEC
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
FIG.C - PRODUCTION PHASING
PHASE
PHASE
PHASE
PHASE IV
PHASE V
PROBATION
FIRST
& A/S IN
BOARD
BASELINE
NEW CLEMENCY
PANELS
MEMBERS LAW REPT.
100
90
80
70
CIVILIAN PARDONI
RATE
60
o
% PARDONS
50
40
30
20
MILITARY
10
PARDON
RATE
SEPT
OCT
NOV
DEC
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
FORD
FIG. D - BOARD PARDON RATE