Judge Orders Oregon National Guard Soldier to Duty

[Woodmonkey]

Judge orders soldier to duty

A federal judge ruled Tuesday that an Oregon Army National Guard soldier must report for duty after he lost a legal challenge to the military's "stop-loss" rules.

In a federal lawsuit, Sgt. Emiliano Santiago had argued that he was improperly called to active duty after his formal eight-year contract with the Oregon Guard had ended. The case centered on a Department of Defense policy that has become increasingly controversial in the past year as thousands of soldiers were barred from leaving Iraq and Afghanistan even though their enlistment terms had been fulfilled.

In Portland, U.S. District Judge Owen M. Panner denied Santiago's motion for a preliminary injunction, less than a week before the soldier is due to report for active duty in Fort Sill, Okla. The decision was met with dismay from supporters and tears from Santiago's family.

Panner said he thought the military would endure more harm than Santiago if he ruled in the soldier's favor, essentially agreeing with the government's argument that thousands of military members who are subject to stop-loss orders might file similar legal challenges.

Steven Goldberg, Santiago's lawyer, said other National Guard soldiers have mounted legal challenges to the stop-loss rules around the country, including California, New York, North Carolina and Washington, D.C. Those cases are pending. In the Washington, D.C., case, Goldberg said eight soldiers who signed up for a special one-year trial program were extended after attempting to get out.

Although Army officials have worked out alternative arrangements with a few Guard officers, no court has ruled against the military's stop-loss policy. Panner's ruling is not an end to the case, but a judgment that Santiago likely would not prevail. The full merit of the case could still be heard.

After the hearing, Goldberg said the Bush administration has been defending the stop-loss policy because it has no other way to maintain the troop strength essential to current military campaigns. The National Lawyers Guild, is spearheading similar cases and hopes to have one in every judicial district within months, Goldberg said.

"A back-door draft like this is an extraordinary method," he said, "and they're doing it because they're having trouble sustaining the ranks."

Goldberg said he is considering appeal options for Santiago, including an expedited process in which hearings could take place before he is sent overseas.

Santiago, 27, lives in Pasco, Wash., but is a solider with D Company of the Oregon Guard's 113th Aviation Battalion, based in Pendleton. He signed up for an eight-year tour beginning June 28, 1996. In April, less than three months before he was scheduled to be discharged, the Army alerted Santiago's unit that it might be mobilized.

As a result, Santiago's termination date was extended more than 27 years -- to December 2031.

In October, Santiago learned that the Army planned to activate his unit Jan. 2, 2005, and deploy the solider to Afghanistan in early February. He filed the lawsuit Nov. 30.

Under the terms of enlistment, the Army can extend under certain emergency circumstances the tour of National Guard soldiers for up to two years, Goldberg said. But he contends in the lawsuit that the Army has to activate the soldier before the end of his hitch.

In Santiago's case, the Army merely announced its intention to activate him before the end of his tour but didn't do so until after his term had expired, Goldberg said.

Matthew Lepore, a Justice Department attorney arguing the government's case, said the stop-loss policy applies to both official active-duty orders and the alerts typically issued to units months before the orders. In this case, Lepore said, Santiago knew before the end of his contract that the enlistment would be extended.

Goldberg also questioned the Army's authority to extend Santiago's contract based on a national emergency. He acknowledged that the Army can extend the contract in cases of an emergency, but said that President Bush has withdrawn the emergency declaration regarding Afghanistan, where Santiago's unit is scheduled to be deployed.

Lepore said the emergency still exists there. He said Goldberg was wrongly applying that language to a Clinton-era order to block assets of the Taliban. He said Bush's order lifting that block expressly found a continuing threat of terrorism there.

Lepore told Panner he should follow previous court rulings, which give deference to the military in making such policy decisions. He said soldiers are told that they give up certain rights afforded to civilians and acknowledge in their contracts that the rules that apply to them are different and can change.

Garrett Epps, a professor of constitutional law at the University of Oregon Law School, said the U.S. Supreme Court has repeatedly deferred to the military on important policy issues, from religious freedom to the drafting of men only.

"The courts are very reluctant to step in and tell the Army how to run things," Epps said.

The hearing was well-attended by citizens who protested the government's stop-loss policy outside the courthouse.

Eric Blickenstaff, whose 23-year-old brother, Joseph, died in Iraq on Dec. 8, 2003, said his brother's tour was extended shortly after he was deployed. He was due to get out in March 2004, but would have stayed up to a year longer if he hadn't died on his first mission.

"Many of them aren't told (they've been extended) until they get over there," said Blickenstaff, a member of a group called Military Families Speak Out. "They're basically holding them hostage."

Ashbel S. Green of The Oregonian contributed to this story. Mark Larabee: 503-294-7664; marklarabee@news.oregonian.com

http://www.oregonlive.com/news/orego...sf?/base/news/

[Hoss68]

In the Washington, D.C., case, Goldberg said eight soldiers who signed up for a special one-year trial program were extended after attempting to get out.

WTF is this? Anyone ever heard of this before?

As a result, Santiago's termination date was extended more than 27 years -- to December 2031.

Can they really do this?

"Many of them aren't told (they've been extended) until they get over there," said Blickenstaff, a member of a group called Military Families Speak Out. "They're basically holding them hostage."

[USA11B]

Quote:




As a result, Santiago's termination date was extended more than 27 years -- to December 2031.


That does seem to be a bit much. However if one reads the original contract {unless it has changed a lot} one is obligated for 8 years if enlisted.
Recruiter skullduggery? Who knows what evil lurks in the hearts of men. Especially those trying to meet a quota.

[scott.voigt]

Technically thats right 2031. When stop-loss in in effect the Army takes control of you as an asset until you reach the mandatory seperation date based on age and rank. Go figure. Officers never truly seperate, but the enlisted side is supposed to be different.

[Woodmonkey]

Originally Posted by USA11B

Recruiter skullduggery? Who knows what evil lurks in the hearts of men. Especially those trying to meet a quota.

That is true. My ex took our daughter horseback riding a few days before she was to report to MEP's for her physical and swearing in. She got some blisters on her bum and an infection set in. She called the recruiter on Monday (her appt was Wednesday) and he took her into the doctor and he gave her antibiotics ... then they contacted me. I wasn't very happy about that, but was especially unhappy about the advice he gave her which was to say nothing to the doctors giving her the physical and to just tell them she had nothing wrong. She was to ship out the day after the physical.

I called my son's recruiter who had been promoted and was a top NCO at MEP's by then and told him what had happened. He had a fit and had Jen's contract cancelled (or whatever they called it), raised hell at that Recruiting Office (the Head of that had told Jen to lie also), and personally took charge of Jen. He also told me that Jen would have been in serious trouble for lying and probably sent home when they found it out, which they would have.

She had been accepted for training in some kind of mechanics MOS, but that job was not available by the time Jen was declared cured. When MP came available, Jen was too young (18 minimum age) so I called that NCO as he had told me to do and he arranged for a waiver.

You have to be careful with some recruiters. Most of them are great, but there are some shady ones.

[rl71066]

i heard of stuff happen like this. i have friends on some post that were told if they dont reinlist they be sent overseas and if they do they can stay in country of a year. thats off the record. on the record they are not doing that.

[Woodmonkey]

Originally Posted by rl71066

thats off the record. on the record they are not doing that.

I see things haven't changed.