Reuters – 2004-08-23 00:30:36
SAN FRANCISCO (August 17, 204) — A California Army National Guard sergeant filed a lawsuit on Tuesday asserting that the government can not prevent reservists from leaving the military when their enlistment periods end.
The suit against Defense Secretary Donald Rumsfeld and other military officials names the plaintiff only as John Doe. It says he served with distinction in the Marine Corps and Army for nine years on active duty and three years as a reservist.
“This lawsuit seeks to stop the forced retention of men and women who have fulfilled their service obligations,” said attorney Michael Sorgen. “When their period of enlistment ends, they should be entitled to return to their families.”
“It’s not that he’s a coward,” he added. “He’s just had it up to here.”
The Army has issued “stop-loss” orders preventing tens of thousands of soldiers designated to serve in Iraq and Afghanistan from leaving the military if their volunteer commitment ends during their deployment. The Pentagon has relied heavily on reservists to fight in Iraq and Afghanistan.
“The order violates Doe’s right to due process and the terms of his enlistment contract, and is contrary to law,” the lawsuit reads. “The involuntary extension of Doe’s military enlistment constitutes a serious infringement on his liberty protected by the Constitution.”
The San Francisco-area man, who filed the lawsuit in US District Court for Northern California, fought during the invasion of Iraq last year. Married with two young daughters, he is seeking a release from service when his Army National Guard term ends in December.
Soldiers ‘Not Overjoyed’ by Forced Extensions
The suit names the plaintiff’s commander as Capt. Kincy Clark, who heads the 131-person Bravo Company of the First Battalion, 184th Infantry regiment based in Dublin, California. The unit reported for duty on Monday and is expected to train for several months before going to Iraq in February or March.
“We have some soldiers who are obviously not overjoyed about being deployed,” Clark, who is named as a co-defendant in the case, told Reuters by telephone. “I have had to look them in the eye and say, ‘Hey, you are going.”’ He added that reservists know when signing up that “stop loss” or extension of service is a possibility.
Lawyer Sorgen said the extension was a violation because the US Congress had not declared war or a state or emergency. He called the suit the first of its kind in recent years, although he said a Georgia court ruled against a soldier after the first Gulf War in a 1991 case.
The attorney also said his client was being treated for post-traumatic stress disorder and had been temporarily excused from reporting with the rest of his unit this week.
A spokesman for the California National Guard had no comment. Joanne Swanson, head of the civil division of the US Attorney’s office in San Francisco, said she was aware of the suit but declined to comment.
The extension of service for US soldiers has also become an issue in the presidential campaign, with Democrat John Kerry saying he will end what he calls a “backdoor draft.”
The “stop loss” order means soldiers who otherwise could leave when their commitments expire will be compelled to remain until the end of a year-long overseas deployment and up to another 90 days after returning to their home base.
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