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19 years of age or about 19 years of age is the best year to take young men from their point of view; so though that wasn't a primary factor we took that into account, so.

Now, that covers the next point, Senator, so I think I will skip that part of it.

Senator KENNEDY of Massachusetts. I saw that there and was going to let you go on through.

Since we are on these points, in your testimony you state: "The uncertainty which exists between 18 and 26 interferes constantly with the ability to plan employment paths and careers, and to meet family and other obligations.'

Would you expand a bit more on the reaction of employers, on how and what their reactions have generally been toward the employability of draft eligible youths? This would be prior to the Vietnam buildup, which has, I understand, caused some manpower shortages.

Mr. MARSHALL. Senator, I do not have any statistics or hard data of that sort but I know from my own experience in a corporation which tries to deal fairly with this problem in the employment of young men and I know from having talked to a lot of students that face employment possibilities, that it is a terrible problem.

I mean the way the system works now, when you come out of college after deferment or even come out a graduate student and you are looking for a job, the first question you are asked by any employer, no matter what his attitude toward the draft or anything else, is what is your draft status?

Now, employers, many of them, particularly the large corporations, try to deal with that problem in a way that does not hurt the young man. That is, they will hire them and then if they get drafted they will give them leave of absence, but without having what I would call statistical or hard data on it it seems to me to be clear that it is difficult for the employer to know what to do with a man that may be drafted within 6 months or a year or 2 years after he joins the company, and it is terribly difficult for the young man to plan what he is going to do and find an occupation suitable for him.

Senator KENNEDY of Massachusetts. Now, you also referred to the fatherhood deferments. I don't know whether you included in here a reference to those who have fled to Canada.

Could you give us some of the examples of ways that have been devised to beat the draft?

Mr. MARSHALL. Yes, Senator.

I think that under the existing rules it is a matter of will and to some extent a matter of intelligence and a matter of means, but given the will, and the means, and the intelligence to figure out how to do it, I think anyone can beat the draft right now.

You can do it through college in the first instance, which is not obviously a bad thing to do; it is an important thing to do, but if you are doing it with this motivation is what I am talking about, and then into graduate school.

Now, there are lots of graduate schools and there are lots of courses in graduate school. I think that it is common experience on the part of the administrators of the universities and colleges in this country that the demand on the graduate schools have been increased greatly by the desire of young men to use that method of avoiding the draft.

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Then after graduate school there are other opportunities. They can get into an occupational specialty which in particular parts of the country and particular times are, in the minds of particular draft boards, a cause for de ferment.

In my own profession I think that a number of lawyers who are graduating from law schools now look for teaching jobs that they would not otherwise look for because they are apt to be able to persuade their draft boards that if they are teaching they are exempt, should be deferred, whereas if they go into practical law or even work for the Civil Rights Division or some other part of the Federal Government they will not be deferred.

Also, if they are foresighted and have that kind of inclination they can get married and became fathers or create a family situation just for this purpose while they are still in school. So I think those are some of the ways.

Senator, I think that like ways of tax avoidance these are legitimate ways of avoiding the draft. My only comment about them is that they are possible and that they are a major motivation in the minds of

young people.

And I don't think that is good for the country and I don't think it is good for the young men. Going to Canada to flee the draft I think is worse than that.

Senator KENNEDY of Massachusetts. Would you say that this opportunity is readily available to the working boy as it is to the boy who is going on to college graduate school?

Mr. MARSHALL. No. Senator, I do not. One of the things that I listed is the needs, the means, and the intelligence. A boy that be

, cause of his educational background or because of the financial situation in the family who cannot go to college, cannot start on this course of pyramiding deferments, so he does not have these opportunities to play with the draft that are available, in my judgment and in the judg. ment of the Commission that studied this, to people that are better off or that happen to be better off.

Senator KENNEDY of Massachusetts. I will come back to the student deferments later on. I would like to have you complete your testimony.

Mr. MARSHALL. Senator, you were hitting on the points in my testimony and I would just as soon discuss them with you as to go on and read the testimony.

Senator RANDOLPH. I think you have robbed him of two pages already.

Mr. MARSHALL. More than that, Senator. These are the points that I thought the committee would like to talk about. Although they are in the prepared testimony I think it is more useful if you ask me about them.

Senator KENNEDY of Massachusetts. We will include the statement in its entirety in the record.

(The prepared statement of Mr. Marshall follows:)

PREPARED STATEMENT OF BURKE MARSHALL Under the present system, young men register with the Selective Service System at the age of 18. The order of call is oldest first, from the age of 26 downwards. As a man gets older towards 26, and particularly if he accumulates no student, occupational or fatherhood deferments, he faces an increasing probability of being called. The results of this are three-fold :

(1) There are up to 8 years of uncertainty from 18 to 26. In periods of threats to our national security calling for exceptional manpower requirements, this period of uncertainty may extend to the age of 35.

(2) Deferments for college, jobs and fatherhood, through the pyramiding of deferments, and the simple advance of age, become de facto determinants of whether one serves or not-deferments, in other words, become exemptions, especially for graduate students.

(3) The uncertainty which exists between 18 and 26 interferes constantly with obligations. This uncertainty appeared in Defense Department studies to be the largest single cause of dissatisfaction with the draft.

The Commission's conclusion therefore, is that draft calls should be made in reverse order, from the age of 19 upwards. This would eliminate or drasticany abbreviate the period of uncertainty for registrants. At the same time, it would obviate any need for most of the occupational and fatherhood deferments, with their resulting inequities. It should do away with the pyramiding of deferments, with its consequences of cynical planning to avoid the draft. And at the same time, from the military point of view, it would provide the Armed Forces with younger men who according to the Department of Defense, absorb combat training better and make better soldiers.

II

The next question is: how to select those that will be called to serve?

If the calls are placed at age 19, the arithmetic of the situation forces the conclusion that some fair and impartial method of selecting some from many equally qualified and similarly situated must be devised. The Commission knew of no better or fairer method than that of a random selection system, and I have still to learn of any alternative.

1,900,000 young men will soon be turning 19 each year. By 1975, the figure will be well over 2,000,000.

Subtract from that figure the disqualified (perhaps 570,000), those deferred for hardship or other reasons (perhaps 30,000), and those who will enlist into the Active or Reserve forces (perhaps 570,000). The total to be subtracted is then some 1,170,000.

When this arithmetic is done, a pool of 730,000 or more remains all of whom are equally eligible for military service.

Assuming a normal year's level of armed forces (for example, 2,700,000 men) there will be a need to draft perhaps only 110,000 of these 730,000.

How does the nation pick the one out of 7?–when the 7 are equally eligible in all other respects?

It cannot pick them by the color of their hair-or their skin. It cannot pick them by whether they are poor or rich, are Southerners or Northerners, from California or Massachusetts. All 730,000 are equally eligible; all must on some fair and impartial basis be given equal exposure to being called to serve.

The nation could pick single men instead of married men—but this would plainly give some artificial stimulus to marriage at 19—and could in any erent only slightly change the arithmetic of the problem.

It could raise the standards for entry into the armed services and pick only the best educated—but there is no military need for doing so, and to do so would concentrate the induction burden on one group. It could pick only the best physical specimens-but again there is no

no military need for doing so, and no policy reason to make the effort.

Finally, these are choices that the Commission thought could not be left to the unrestrained discretion of the local boards, no matter how dedicated or wise their members. So the Commission concluded that the only fair and impartial selection system was one of random selection by whatever mechanical, technical or other means the Selective Service System decided was best suited to the job.

As the Commission saw it, a random selection system used for this limited purpose would not be a substitute for the process of judgment. All the questions requiring the exercise of judgment would first he answered—whether a man is physically, mentally, morally qualified; whether he is entitled to a hardship or other legal deferment; whether he is a bona fide conscientious objector; whether he should not enlist in a particular service before the draft; or become an officer candidate.

Only after those questions have all been asnswered—if necessary through the entire appellate machinery of the Selective Service System-is the pool of

eligibles identified; only then, does the random selection system operate to determine an order of call among those equally eligible.

Under this system, the exposure period could be one year—or could be for a greater or a lesser period. The point is that the system would operate so that each young man would know where he stood on the list. After the set exposure period, the 620,000 not called out of the 730,000 would be free-to go ahead with careers or education. They would be draftable only in the event of national emergency-in case the succeeding years' "classes” of 19-year-olds were hot sufficient to meet extraordinary manpower requirements.

III

A decision to reverse the order of call and take 19-year-old men first eliminates the argument for most deferments, and the problems of inequity they create. But it raises most squarely and inescapably the question of the fairness and wisdom of our student deferment policies. The Commission's own debate on this matter is summarized at some length in its report. I will not try to repeat all of the arguments that can be made for and against a policy of college student deferment. I will state the major issues as we saw them.

First, the statistics available to the Commission showed that only some 27% of those students in graduate school ever actually served in the Armed Forces in the period covered by the survey. The Commission's attention was directed in a number of ways to the distortion in the plans of students-in their search “in the endless catacombs of formal education", as Kingman Brewster put itby the opportunity to pyramid deferment on deferment through graduate school, through occupational specialty, through the advance of age, or through some other method of finally avoiding the draft altogether. On the other hand, the Commission did not have before it any evidence that the abolition of deferments for graduate students, which would in effect mean no more than an interruption between college and graduate school for most men, would seriously disrupt the flow of trained professional manpower into our society. The only exception which the Commission was made aware of in this connection was the graduate training of medical and dental students. Accordingly, the Commission concluded that deferments at this level of education resulted in an unfair and an unnecessary avoidance of military service by those entering graduate school, without any corresponding national need which would justify the discrimination in treatment.

The Commission, as a whole, believed that somewhat similar considerations required the elimination also of under-graduate deferments.

The compelling need for fairness that the Commission saw here reflects the impact of war. A 19-year-old student, under the system of selective service envisaged by the Commission, would be given an opportunity not to serve in war if the student deferment were to be continued, while a 19-year-old man otherwise in exactly the same position, but without the means or the opportunity or the will to enter college, would be given no such choice. The Commission, as a whole, felt that a choice given to one 19-year-old but denied to another when that choice meant service in wartime, should be justified by some other compelling national need or reason of equity. In this case the majority of the Commission found no such compelling case for the continuation of the student deferment policy.

The question can legitimately be raised whether abolition of student deferments would impair the flow of young men through the educational institutions. There was no evidence available to the Commission that an interruption at the Sophomore year in college would be more harmful to the education of a young man than an interruption later, or indeed that it would be harmful at all. Some educators believe that an interruption before college or in mid-college is beneficial to the student. With the financial incentive and assistance of a GI Bill, there is at least no reason to believe that a return to college after service would be discouraged. Such evidence as we have, from World War II, is to the contrary.

The most serious manpower problem raised by abolition of the college student deferment appeared to be not the flow of educated men into society, but rather the more limited problem of officer procurement for military purposes. The Armed Services need approximately 40,000 new officers each year, some 27,000 of which come from college student recruitment programs. The Commission recommended, as an exception to its policy on college student deferment, that the Defense Department be encouraged to continue these programs and even to devise new ones, so long as the commitment to service be made a firm commitment by the student. With this in mind, the Defense Department informed the Commission that it believed that officer requirements could probably be met through a major revision of existing officer procurement programs and extensive use of Class I-D deferments—that is, deferments for students taking military training with a commitment to military service.

I stated these conclusions as the conclusions of the Commission as a whole. Some members disagreed because they felt that the elimination of the pyramiding of deferments through graduate student deferments and other deferment classifications would do away with the greatest inequity involved in student deferment policies that presently exist. They also did not accept the conclusion that the Defense Department could clearly meet its officer needs by the revision of student training programs to which I have referred.

I should also note that the Commission concluded that it had a clear preference for a system under which everyone called to service at the age of 19 would have a period of time, to the age of 23, in which he could plan his own time of service. This would eliminate the inequity of making a distinction between students and non-students, and would greatly add to the freedom that young men should have to plan their own lives. The Commission did not feel that it could say that such a policy could now meet the military manpower needs of the war in Vietnam, although some members of the Commission, at least, were not convinced that it could not meet those requirements. In any event, most members of the Commission felt strongly that the feasibility of this method of increasing the freedom of choice of the young men called to serve should be studied with great intensity and at once.

IV

I have summarized the three areas of the Commission's Report and Recommendations which I thought would be of most interest to this Committee. The Commission also made major recommendations with respect to the organization of the Selective Service System, the treatment of rejectees, conscientious objectors, recruitment into the Reserves, and especially, various concepts of national service. As far as my prepared statement is concerned, however, I shall leave these subjects to the statements concerning them in the Report itself. I shall be happy to answer any questions the Committee has.

Senator KENNEDY of Massachusetts. Going back with regard to the student deferments, why would not just eliminating graduate deferments eliminate many of the inequities you have pointed out?

Mr. MARSHALL. They would, Senator. They would eliminate the most clear inequity. The Commission felt that and for that reason all members of the Commission as well as other groups have recommended that. I think it leaves at least two problems.

One is the problem of choice, timing.

Right now being drafted involves the possibility in the minds of the young men and their parents and their families of fighting in a war. That is not a situation which I hope will continue; we all hope will not continue for a long period of time, but a student right now is given a choice of avoiding that, it may be a choice, you know, that doesn't work out, but he is given that choice, and he is given that choice when people who are not in colleges are not given that choice.

That is one problem. That is the gravest prolem, in my judgment, that if they are not compelling national reasons for giving some people that kind of choice and not at the same time giving everybody that kind of a choice I think there is still an unfairness.

Senator KENNEDY of Massachusetts. What would be the compelling reasons, as you see them?

Mr. MARSHALL. Senator, we looked into this and I and most members of the Commission concluded that there were not compelling reasons. I think the argument on the other side would be twofold.

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