Page images
PDF
EPUB

convicted draft evaders. The whole thrust of this unfairness is that any violations of the law that might remain pale by comparison with the violations of law committed by the Selective Service System and the Justice Department.

Thank you.

Mr. ALDER. Mr. Chairman, I would like for a moment to turn to Ms. Hewman, whose prepared statement is, as I said, in the record, who I think could fruitfully detail in brief for this subcommittee the alternatives available to the in-service offender, and to comment on one provision of S. 1290, which appears to have been particularly illdrafted.

Ms. Hewman?

MS. HEWMAN. Thank you.

I am pleased to be here this morning, Mr. Chairman and members of the committee to talk briefly with you about the problems about Vietnam era veterans with less than honorable discharges, as these problems relate to the present and proposed clemency programs.

In fact, the vast majority of individuals who are in need of an amnesty are those individuals with less than honorable discharges. The present clemency program, as Mr. Schwarzschild indicated this morning, simply provides no relief for these people. The clemency discharge itself will only perpetuate a system of discrimination that has long been rampant against those individuals with less than honorable discharges from the military. A pardon, of course, also solves no problems. For those with administrative discharges there is no conviction which has caused a loss of civil rights, thus no civil rights which need to be restored. Even in terms of the type of pardon Mr. Danielson referred to earlier, involving immunity from prosecution, none of these individuals, of course, presently have any outstanding charges, and none of them is subject to prosecution. But not only will the present Clemency Board not provide any relief for those individuals who are eligible to apply-and I might add that the Clemency Board has not decided one case as yet involving an administrative dischargebut also the present program is far too restrictive in that it only includes those approximately 100,000 veterans whose discharges resulted from absence-related offenses. However, there are over 400,000 additional Vietnam era veterans who hold less than fully honorable administrative discharges, both general discharges and undesirable discharges for reasons other than absence.

These discharges, too, are related to the Vietnam war, either directly or indirectly, resulting from such reasons as drug use, opposition to the war on grounds of conscience which were expressed in ways other than by deserting the Armed Forces, or simply an inability to adapt to military life having been inducted under Project 100,000, which, in order to beef up U.S. Forces, permitted induction of those who did not meet eligibility criteria for entrance into the Armed Forces. In other words, it was pretty clear that they would not be able to make it because absent the war, they would not have met the standards to be inducted. When they did not make it, they were punished with bad discharges, and now, of course, are suffering from the stigma that has resulted. No amnesty program can even begin to be adequate when 80 percent of the veterans in need of amnesty are by definition excluded from an amnesty program.

The same restrictions appear in S. 1290, and also in Senator Hart's bill. That is, the veterans who would be included in those programs again are the veterans with less than honorable discharges, only for absence-related offenses.

I would also point out to the committee that the discharge system, particularly during the Vietnam war, as members of the committee have recognized, was subject to great abuse. It was a way to get rid of people easily by circumventing the Uniform Code of Military Justice, which requires, of course, more procedural safeguards. If you want to get rid of somebody and you want to do it quickly, you do it through the administrative discharge system. The system, by the Defense Department's own study, the DOD Task Force on the Administration of Military Justice, which was published in 1972, showed that the discharge system is blatantly racist. There was a far higher proportion of less than honorable discharges issued to minority groups than to whites with the same educational background and the same standards coming into the service, the system is quite arbitrary as well. The same kind of behavior will get you a bad discharge in one service, or even in one unit, and a different type of discharge in another service or another unit.

The only way that veterans with less than honorable discharges can receive any justice is for there to be a universal and unconditional amnesty that would include those half million veterans with less than honorable discharges and would give them honorable discharges.

Now there has been some question about the propriety of giving honorable discharges. Should these veterans be entitled to VA benefits? First, I would remind the committee that one is not entitled to VA benefits, even with an honorable discharge, unless there has been service of at least 180 days, that is, 6 months.

Second, vast numbers of these people served not only 6 months, but 2, 3, and 4 or more years; and great numbers of them actually served in Vietnam, in combat or in other capacities.

The ultimate solution beyond the amnesty, of course, is a single type discharge. There is no other employer besides the military in this country that labels people adversely as the military does, and none of the military services in European countries, in fact, have graded discharge systems such as we have in our country.

But, until and unless there is a universal and unconditional amnesty that is legislated by the Congress, I would also suggest that the committee look at the legislation that has been introduced that would improve the procedures and processes and standards of the discharge review boards which presently exist. At the present time those boards provide the only real remedy for any veterans with less than honorable discharges.

The problem, of course, is that it is a case by case review, and it is going to be impossible to review one half million discharges. But at the same time, at least, reviews before those boards do produce both general and honorable discharges. There have been several bills introduced so far in this Congress which I have enumerated in my written statement, that would provide for regionalization of these boards. That is a very first step, and it is a terribly significant step.

Mr. Martin Hoffmann from the Defense Department told you on Monday that the Defense Department itself is thinking about region

alizing the boards if, in fact, business becomes pressing. But I would submit to you that business is pressing now. It can take up to 10 months to get any results from these boards at the present time. And second, one of the reasons that business is not pressing is that there is only one board for each service and the boards sit only in Washington. Veterans cannot afford to come to Washington for personal hearings. If the boards were regionalized, there would be far more business because there would be access to the boards for Vietnam-era veterans who, because of their bad discharges and the subsequent job discrimination they suffer simply do not have the financial resources to come to Washington.

DOD's own statistics indicate that for a veteran who makes a personal appearance before these boards, the chances for upgrade are over 100 percent greater than if that same veteran were to submit his case simply on documentary evidence.

There are other improvements, of course, that are needed in the boards, too. It is our position that the boards should be civilianized so that a broader perspective is given to the problems of veterans. I would suggest also that standards could be written that would make the boards more sensitive to the problems and issues that particularly relate to the Vietnam-era veteran.

Thank you.

[The prepared statement of Ms. Hewman follows:]

STATEMENT OF SUSAN H. HEWMAN

My name is Susan H. Hewman. I am staff attorney with the Military Rights Project of the American Civil Liberties Union Foundation.

Mr. Chairman, members of the Committee, I am pleased to be here today to discuss with you the clemency program as it relates to Vietnam era veterans with less than honorable discharges.

The vast majority of individuals eligible for clemency under the President's program were those with undesirable discharges from the military for absence related offenses. Of the approximately 120,000 people estimated to fall under the Jurisdiction of the Clemency Board, approximately 100,000 or 80% fall into this category. Yet, the Clemency Board offers them no relief.

The military discharge system, not generally well understood by the public, is composed of five categories of discharges: honorable, general under honorable conditions, undesirable, bad conduct and dishonorable. Only the last two are issued as a result of a sentence pursuant to a court-martial conviction. The first three categories are issued pursuant to an administrative process.1 Although not punitive in origin, general and undesirable discharges are severely punitive in their effect upon the individual when he or she returns to civilian life.

The bad discharge becomes a lifetime stigma, a life-sentence imposed on individuals in their late teens or early twenties. These veterans find themselves virtually unemployable. Congressman John Seiberling conducted a survey in 1973 of the 100 largest U.S. corporations to determine the extent of discrimination against veterans with other than honorable discharges in the hiring process. He reported that 41% of those who responded admit to discrimination against vets with general discharges and 61% against vets with undesirables. (Bad conduct— 62%; dishonorable-73%) * In addition, all but approximately 1% of veterans with undesirables are denied V.A. benefits.

2

The Clemency Board offers no real help to these veterans. The Board holds out as relief a clemency discharge and a pardon. The public believes that any dis

1 Such discharges are often arbitrarily given and disproportionately issued to members of minority groups. Report of the Task Force on the Administration of Military Justice in the Armed Forces (1972).

2 Military authorities have made similar findings. "The Gravity of Administrative Discharges: A Legal and Empirical Evaluation," 59 Military Law Review 1 (Winter, 1973).

charge that is not honorable is dishonorable and that the recipient is a criminal. Thus the clemency program, by adding yet another type of less than honorable discharge, the clemency discharge, will simply perpetuate a system of discrimination. As Mr. Martin Hoffmann of the Department of Defense stated before this Committee (Prepared Statement, p. 8), the clemency discharge does not represent a change in the characterization of an individual's service-it is simply an undesirable discharge by another name. Further, a pardon for the absence offense which led to the discharge is useless. A pardon restores civil rights lost due to a conviction. Since a vet with an administrative discharge has not been convicted of anything, the pardon makes no change in his/her status.

In addition, the clemency discharge does not bestow entitlement to V.A. benefits. And, finally, an individual is required to perform alternate service in order to receive the program's nonrelief. It is not surprising that only a small percentage of those eligible have in fact applied to the Clemency Board. And even many of these were solicited falsely by the Board which advertised that it was upgrading discharges.

Not only does the Clemency Board fail to offer any meaningful relief to those veterans eligible to apply, but also the present program is far too restricted in that it includes only those approximately 100,000 veterans whose discharges resulted from absence related offenses. However, over 400,000 additional Viet Nam era veterans hold less than fully honorable administrative discharges, both general and undesirable, for reasons other than absence. Most of these discharges are also related to the Viet Nam war either directly or indirectly, resulting from such reasons as drug use, opposition to the war on grounds of conscience, or simply being unable to adapt to military life having been inducted under "Project 100,000" which, in order to beef up U.S. forces, permitted induction of those who did not meet eligibility criteria for entrance into the Armed Forces. No amnesty program can even begin to be adequate when 80% of the veterans in need of amnesty are excluded from its provisions by definition.

In fact, the avenues for relief for Viet Nam era veterans with bad discharges which long predated the Clemency program, that is, the military Discharge Review and Correction Boards, have the potential for providing for greater relief than does the clemency program. Favorable action by these boards consists of an ungrade of a discharge either to general or honorable. And both these categories have automatic entitlement to V.A. benefits. And, of course, no alternative service is required. The ACLU Military Rights Project has achieved such upgrades in over 80% of its cases and those handled by its volunteers before these boards thus far. I cannot fully endorse these boards in their present structure and procedures. But, even with their failings, they hold out at present the only real hope for relief for the veteran with a bad discharge. Thus the individual who receives a clemency discharge will still have to apply to the discharge review boards for an actual upgrade of the discharge. It is far simpler and quicker for the veteran to go directly to the Discharge Review Board in the first instance and bypass the Clemency Program. To get results from both boards would take up to two years. Further, the Clemency Board has been given priority in getting the veterans' records, so that a discharge review will be held up until the Clemency Board completes a case.

S. 1290, introduced by Senators Nelson and Javits, to extend and modify the present clemency program also fails to give the relief needed to veterans with less than honorable discharges.

First, the bill retains the category of "clemency discharge," as something between a general and an undesirable discharge. Even though the bill defines the clemency discharge as being under honorable conditions, confusion by the public is inevitable and the result will be stigmatization and punishment. Second, from inquiries directed to the Clemency Board, it seems that under the present program the Board will recommend a limited number of honorable and general discharges to the President. However, it appears to be their intention to do so only in cases of highly decorated Viet Nam veterans. There is no reason to believe that given the authority by S. 1290 to give clemency, honorable or general discharges, that without further guidance, the Board wouldn't continue to pursue a policy of so limiting honorables and generals. Third, the bill would create a senseless review procedure by the Veterans Administration (Sec. 8). The bill provides that the V.A. may review each case of an applicant with a clemency discharge for a determination as to eligibility for benefits; such determination

3 In fact, 90% of actual Viet Nam veterans saw no combat.

is to be without consideration of any act pardoned by the President. The standard for review for eligibility for benefits in the V.A. statute, 38 USC 1652(a)(1), provides that a veteran is eligible for benefits ". . . who was discharged . . . under conditions other than dishonorable." This is not the same as a dishonorable discharge. It is a non-military determination under the V.A. organic statute. Since the pardoned offense is in fact the condition upon which the discharge was based, and since the V.A. could not consider that offense under the bill, it could not by definition find that any veteran holding a clemency discharge was discharged under "dishonorable conditions." Thus, an adverse determination never could be made and the veteran would be forced to go through a useless procedure and more delay. And the danger is that if an adverse determination is unlawfully made, V.A. decisions by statute are not reviewable.

In sum, the clemency discharge under S. 1290 will be punitive in effect; the lack of standards governing the issuance of clemency; honorable and general discharges may lead to the inequitable award of clemency discharges, and the V.A. procedure established is meaningless. The clemency discharge must be abolished.

Both the present and proposed clemency program offer too little to too few too slowly. The only way to insure clemency for all veterans with "bad" discharges is for Congress to legislate a universal and unconditional amnesty which would provide honorable discharges to all Viet Nam era veterans with less than honorable discharges. A case by case review of over one half million cases is impossible. This concept should also be legislatively extended to establish a single type discharge. There is no valid justification for graded discharges. The labelling of individuals can serve no purpose, but to stigmatize those labelled adversely. Civilian employers certainly do not label those who leave their employ. Nor do the militaries of the European nations label their veterans. Such legisla-tion could require retroactive application.

Absent such a broad approach to the problem, the Congress should enact legislation that instead of institutionalizing the clemency program, would improve the structure, policies and procedures of the Discharge Review Boards by making those boards more accessible to the veterans and more sensitive to the Viet Nam era veteran. At this time each service has one such board which meets only in D.C. The veteran in California, for example, must travel at his own expense to D.C. to make a personal appearance before the review board--a financial impossibility for most. Yet, the Defense Department's own statistics demonstrate that the rate of upgrade is more than 100% higher in personal appearance cases than in those in which individuals submit their cases on a documentary record. It is imperative that these boards be regionalized. H.R. 2455 (Cong. John McFall), H.R. 262 (Cong. Edward Boland) H.R. 5305, 5306, 5307 (Cong. Louis Stokes) and H.R. 867 (Cong. Melvin Price) all would create such regionalized Discharge Review Boards. H.R. 2455 also makes provisions for reasonable travel expenses for the applicant.

Mr. Hoffmann told you Monday (prepared statement, p. 12) that DOD may consider regionalizing the boards if business becomes pressing. First, business is pressing now. It can take up to ten months to get results at present. Second, keeping only one board here, in fact, limits the business of the boards by limiting access to the boards and thus cutting down on the number of hearings held since most veterans cannot afford the trip to D.C. The bills I have cited should be supported and such legislation must be enacted into law in this term of the Congress.

The review boards, which are now comprised of active duty officers, should also be civilianized so that a broader perspective will be applied to the decision making process.

Finally, standards for review should be set giving special attention to those issues and problems which relate specifically to the Viet Nam era veteran.

We, as a nation, can no longer tolerate the victimization of Viet Nam era veterans with other than honorable discharges. Neither the present Clemency Program nor that proposed by S. 1290 provide the needed relief. This Congress must take action.

Once again, I thank you for the opportunity to appear before you today.

Mr. ALDER. Mr. Chairman, I have 5 minutes or so on the Selective Service System's performance under the clemency program which I would gladly defer if you think the time is such that, at this hour you

« PreviousContinue »