Obvious inequities became evident. For example, in one family, two brothers might have held the same deep-felt opposition to war not based on religious convictions. The elder son, who became draft eligible before the Welsh decision, could not have been classified as a conscientious objector and might have gone to prison or into exile. His younger brother, holding exactly the same views on war, could have become a conscientious objector. He would not be a criminal, and could be lawfully serving his country in alternative service.

Third, the Board could consider circumstances where an applicant's immediate family was in desperate need of his personal presence for which no other substitute could be found, and such need was not of the applicant's own making.

Fourth, consideration by the Board could be given to the fact that the applicant demonstrates a lack of mental capacity which might have rendered his acts less than willful. It is entirely possible that there are groups of men of low mental capacity who, through peer pressure or otherwise, took action which, upon full examination, provides a basis for mitigation of the length of service.

Fifth, the Board could consider whether the applicant has in the past, or is currently, subject to judicial sanctions for committing offenses for which he seeks immunity.

Sixth, the Board would be empowered to consider such other circumstances as would be consistent with these I have already enumerated. My proposal, however, specifically forbids reduction of the maximum term of service for those individuals whose sole motivating factor was selective opposition to the Vietnam war. Such individuals, while not disqualified from securing immunity, cannot use that factor as the basis for any reduction in the term, since it has never been a basis for a similar action by any of the draft regulations. On this point I would refer the subcommittee to Gillette v. United States, 401 U.S. 437, decided in 1971 by the Supreme Court.

As I have outlined, the concept of alternative service that I have proposed specifically excludes deserters. I recognize the apparent inequities that this approach may raise on a cursory examination of this issue. Upon protracted reflection, however, I have concluded that it would be unwise to include such individuals in the alternative service concept, as deserters are covered by an entirely different legal system that is inextricably intertwined with considerations of military discipline. Individuals who deserted from military service, particularly those who left functioning combat units, had a far more disruptive impact on our Nation's defense posture than individuals who refused induction. Statistics brought to my attention by the Department of Defense suggest that less than 5 percent of the individuals who deserted during the Vietnam conflict did so for ideological opposition to the war, and as to individuals in this category great flexibility was administered to constructively resolve individual cases. That is not to suggest, however, that perhaps the subcommittee should not further examine this area as there may be inequities that have not been satisfactorily resolved.

The other broad objection pertains to the concept of alternative service itself. Why not a blanket amnesty? Such an approach, in my

opinion, is too broad and would include individuals who did not have deep moral convictions against war. Former Truman Board Member James F. O'Neil's statement to this subcommittee makes this point very succinctly. I would caution, however, that the Truman Board procedures certainly could be improved upon.

Further, as I stated at the outset of my statement. I do not believe this issue should, or can, be resolved on the question as to correctness of U.S. military involvement in Southeast Asia. The Military Selective Service Act was in effect at the time of the Vietnam conflict, and that fact cannot be ignored, no matter how strong one may object to the premises upon which it is based. The proper role I would suggest for any individual who opposes a law is to use every legitimate peaceful means at his disposal to change it and, if his efforts are unsuccessful, be prepared to make a choice from the alternatives that he is then faced with. To simply state that any individual is above the law because of deep-felt views of principle, is to suggest a society without any order or meaning. The concept of alternative service is not punitive. It is offered in a positive context; for example, service in VISTA or the Peace Corps. I would emphasize that no individual would be forced to make such a commitment to serve, it would be an individual's own choice. Such service would be consistent with the legal obligation that resisters are faced with and, in essence, would simply provide another alternative to permit that obligation to be fulfilled.

Mr. Chairman, before concluding my statement, I would like briefly to comment on two issues which have been raised in the hearings to date.

First. I noted with interest testimony that rejected not only unconditional amnesty, but also the concept of alternative service. The general premise of this testimony, as I understand it, is that individuals who have violated the Military Selective Service Act or deserted must be required to pay a criminal penalty for violating the law. I would sugegst to this subcommittee that a large percentage of such individuals have in the past been offered an alternative other than a criminal penalty. Many deserters have been permitted to rejoin their units with only a reprimand. Resisters have not been prosecuted if they agree to enlist in the armed services. These approaches had been the policy of the Justice and Defense Departments before the expiration of the draft. I quote from a response I received in November of last year from Assistant Attorney General Petersen in this regard. He states as follows:

It was our policy to allow such a man, in the absence of aggravating circumstances, to remove his delinquency under the Military Selective Service Act by submitting to induction processing and to authorize the dismissal of his indictment upon successful completion of induction. That policy was terminated on July 1, 1973, because of the expiration of the induction authority on that date. In our view, that policy was beneficial to all concerned for the reason that the inductee would render valuable service to our country for a period of twentyfour months and he would have the satisfaction of having fulfilled his service obligations. On the other hand, men convicted and sentenced for violation of the Act performed no worthwhile service of any kind and, in most instances, were permitted to return to their normal way of life in a considerably shorter period -of time. For example, in fiscal year 1972, the average term of imprisonment

imposed for draft law violations was 36.2 months; however, the average actual time served in custody was 9.1 months. Moreover, 1,178 of the 1,643 defendants convicted were placed on probation by the courts, with the result that less than one-third of the men convicted ever received a prison sentence.

Subsequently to July 1, 1973, it was our policy to inform a draft delinquent prior to indictment that he was in violation of the law and prosecutive action against him was contemplated unless he were willing to correct his delinquency by enlisting in the United States Army. In that event, consideration would then be given to permitting him to purge his violation without being subjected to criminal charges. That policy has been abandoned, however, because the Department of Defense advised us that it would not accept for enlistment men who are in violation of the draft law, whether under indictment or not. We were recently informed that the enlistment policy was reconsidered, at our request, within the Department of Defense and by the Secretary of Defense, but it was concluded that it should continue in effect.

Since that decision could place a substantial prosecutive burden on the United States Attorneys throughout the country, as they no longer have a viable alternative to offer the defendants other than prosecution, we are again asking the Department of Defense to reconsider this matter.

Unfortunately, as Mr. Petersen states, the Department of Defense has refused to continue such a policy, but the point is that alternatives other than criminal sanctions have been a part of this country's policy and the concept of alternative service is not a new or radical approach, especially when supplemented with the conscientious objection alternatives already contained in the law. In the general context of Justice Department policy on this issue, it is also interesting to note the last paragraph I quoted of Mr. Petersen's letter pertaining to the burden of prosecuting draft resisters throughout the country. Statistics from the 1973 Semiannual Report of the Director of the Administrative Office of the U.S. Courts would indicate that this burden on the Justice Department has been translated into a very uneven approach of prosecution with the determining factor quite often being the geographical region of the country that an individual is from as to the disposition of the case. For example, during fiscal year 1972, only 1 of Ohio's 218 defendants in selective service cases served a prison sentence compared to Minnesota with 94 convictions, 47 of which resulted in imprisonment, out of a total of 141 defendants.

Mr. Chairman, I ask that the correspondence on this issue with the Departments of Justice and Defense regarding Government policy toward draft resisters be printed in the hearing records.

Mr. KASTEN MEIER. Without objection, they will be received. [The documents referred to follow:]

Senator ROBERT TAFT, Jr.,

U.S. Senate,

Washington, D.C.

DEPARTMENT OF JUSTICE. Washington, November 9, 1973.

DEAR SENATOR: This is in reply to your letter of October 24, 1973, to Acting Attorney General Robert H. Bork regarding the Department's policy to permit draft evaders to enter the Armed Forces in lieu of prosecution.

It was our policy to allow such a man, in the absence of aggravating circumstances, to remove his delinquency under the Military Selective Service Act by submitting to induction processing and to authorize the dismissal of his indictment upon successful completion of induction. That policy was terminated on July 1, 1973, because of the expiration of the induction authority on that date. In our view, that policy was beneficial to all concerned for the reason that the inductee would render valuable service to our country for a period of twenty

four months and he would have the satisfaction of having fulfilled his service obligations. On the other hand, men convicted and sentenced for violation of the Act performed no worthwhile service of any kind and, in most instances, were permitted to return to their normal way of life in a considerably shorter period of time. For example, in fiscal year 1972, the average term of imprisonment imposed for draft law violations was 36.2 months; however, the average actual time served in custody was 9.1 months. Moreover 1,178 of the 1,643 defendants convicted were placed on probation by the courts, with the result that less than one-third of the men convicted received a prison sentence.

Subsequent to July 1, 1973, it was our policy to inform a draft delinquent prior to indictment that he was in violation of the law and prosecutive action against him was contemplated unless he were willing to correct his delinquency by enlisting in the United States Army. In that event, consideration would then be given to permitting him to purge his violation without being subjected to criminal charges. That policy has been abandoned, however, because the Department of Defense advised us that it would not accept for enlistment men who are in violation of the draft law, whether under indictment or not.

We were recently informed that the enlistment policy was reconsidered, at our request, within the Department of Defense and by the Secretary of Defense but it was concluded that it should continue in effect. Since that decision could place a substantial prosecutive burden on United States Attorneys throughout the country, as they no longer have a viable alternative to offer the defendants other than prosecution, we are again asking the Department of Defense to reconsider this matter.

Sincerely,

HENRY E. PETERSEN, Assistant Attorney General.

OCTOBER 24, 1973

Hon. ROBERT H. BORK,

Acting Attorney General,

Department of Justice, Washington, D.C.

DEAR MR. BORK: Recent reports have come to my attention that the Department of Defense has rejected the Justice Department's proposals to permit individuals in violation of the Selective Service Act to volunteer for service in the Armed Forces in lieu of prosecution.

The concept of service in the Armed Forces would appear to be better for the Nation than prison sentences, and, as I understand past practices, individuals facing indictment under the Selective Service Act have been permitted to undertake service without being subject to criminal sanctions. I would appreciate a clarification of the current and past Department of Justice policy on this issue and projections for the future disposition of this matter.

With every good wish.
Sincerely,

ROBERT TAFT, Jr.,

U.S. Senator. OCTOBER 24, 1973.

Hon. JAMES R. SCHLESINGER,

Secretary of Defense, The Pentagon,
Washington, D.C.

DEAR MR. SECRETARY: Recent reports have come to my attention that the Department of Defense has rejected the Justice Department's proposals to permit individuals in violation of the Selective Service Act to volunteer for service in the Armed Forces in lieu of prosecution.

The concept of service in the Armed Forces would appear to be better for the Nation than prison sentences, and, as I understand past practices, individuals facing indictment under the Selective Service Act have been permitted to undertake service without being subject to criminal sanctions. I would appreciate a clarification of the current and past Department of Defense policy on this issue and projections for the future disposition of this issue.

With every good wish.
Sincerely,

31-658 74 - 24

ROBERT TAFT, Jr.,

U.S. Senator.

ASSISTANT SECRETARY OF DEFENSE,

Washington, D.C., November 2, 1973.

Hon. ROBERT TAFT, Jr.,

U.S. Senate,

Washington, D.C.

DEAR SENATOR TAFT: This is in response to your letter to Secretary Schlesinger of October 24, 1973, requesting clarification of Department of Defense policy relative to the voluntary enlistment of persons who are under indictment or investigation for alleged violation of the Selective Service Act.

It has long been the policy of the Department of Defense to preclude the voluntary enlistment of persons under indictment for a criminal offense, including violations of the Selective Service Act. During periods when draft authority was exercised by the President, the military services accepted for induction those registrants who reported pursuant to orders issued by the Selective Service System without regard to arrangements which may have been made between the individual concerned and U.S. Attorneys relative to possible prior offenses.

In anticipation of the termination of induction authority and at the request of Assistant Attorney General Henry Petersen, the Department of Defense twice requested that the Military Departments reconsider their policy and permit the enlistment of persons in lieu of prosecution or indictment for Selective Service Act violations. The Service Secretaries considered and reaffirmed their position adamantly on both occasions. Secretary Schlesinger personally considered the issue in August of this year and reaffirmed the present policy.

The Selective Service System (including the penalties for violations) was intended to provide manpower for the Armed Forces, and motivation for military service was not a primary consideration. Induction of alleged violators in lieu of prosecution was not inconsistent with that policy. That concept of our armed forces has been completely revised, however, and proper motivation for service is now fundamental to the success of the all-volunteer force. The individual who enlists under the coercive threat of prosecution is not a real volunteer and does not truly desire to be a professional soldier, sailor, airman, or marine. Because he is not properly motivated to become an effective member of the armed forces, the forced volunteer has a high potential for difficulties in the service.

The Military Services unanimously oppose the enlistment of these men because it violates the all-volunteer concept and implicitly condones the action of draft evaders. Such a policy smacks of equating military service with penal servitude. The Department of Defense has previously solicited Department of Justice cooperation in terminating the practice of permitting any youthful offender to enlist in the military to avoid criminal prosecution irrespective of the nature of the offense involved. The absolute eradication of the "enlist or jail" option is a matter of considerable concern to the Department of Defense in our efforts to ensure a highly motivated all-volunteer Armed Force and to bolster and renew public confidence in military service as a thoroughly respectable and honorable profession.

The Department of Defense is equally concerned that a relaxation of this exclusionary policy for Selective Service Act violators would establish a thoroughly undesirable precedent which offers inductees in any future conflict the option to avoid service until peace is restored. There is no way to equate service in peacetime with service in armed conflict. The proposal is fundamentally unfair to the two and one-half million men and women who performed their service during a period of conflict and, in particular, to over 350,000 maimed and wounded and over 45,000 who gave their lives. This precedent would dangerously impair the effectiveness of any future induction system.

The Department of Justice has terminated the practice of offering an enlistment alternative to individuals already under indictment for Selective Service Act violations. It is my understanding, however, that U.S. Attorneys are continuing to make the option available in cases which remain in the pre-indictment stage. This situation is the subject of current discussions between the Departments. In the absence of a satisfactory accommodation, military recruiters will continue to reject enlistments which are known to be motivated by an offer to forego indictment or prosecution.

It is hoped that the foregoing information will be of assistance to you. Your interest in this matter is appreciated.

Sincerely,

LEO E. BENADE,

Lieutenant General, USA,

Deputy Assistant Secretary of Defense.