A National Guard soldier lost his bid to avoid being sent to Iraq, but his challenge of a military program that involuntarily extends his enlistment will continue in court.
U.S. District Judge Frank Damrell Jr. ruled Friday that there was no need for an injunction stopping the soldier’s transfer to Iraq later this month because his California National Guard enlistment does not expire until the end of April.
Damrell said the legal matter would be resolved before then. If the unnamed soldier prevails, he can be sent home in the spring by court order.
The lawsuit challenged the military’s “stop-loss” program that extends enlistment during wartime or national emergencies. The program has been criticized by some lawmakers, including former Democratic presidential nominee Sen. John F. Kerry, as a backdoor draft.
Stop-loss could keep tens of thousands of personnel in the military beyond their time of service.
The National Guardsman, identified only as John Doe to prevent harassment or reprisal against him or his family, filed suit last month arguing that the policy doesn’t apply to the National Guard.
He signed up under the National Guard “Try One” program for veterans, which offers military education and family medical benefits for a one-year trial. With his term set to expire April 30, he was called up earlier this year for an 18-month tour in Iraq, which is scheduled to begin this month.
With the stop-loss provision in effect, the Iraq tour will extend his enlistment nearly a year beyond the one-year trial he signed up for. His lawyers said the stop-loss provision can be used only when Congress declares war. Troops can’t be used for nation-building missions, such as the soldier’s upcoming deployment to Iraq, under another provision that allows extended service for a national emergency, the lawyers added.
“He’s being deprived of his liberty under an order he charged as unlawful,” attorney Joshua Sondheimer said.
U.S. Justice Department attorney Matthew Lepore defended the policy and said it was authorized by an emergency executive order signed by President Bush three days after the Sept. 11, 2001, terrorist attacks.
The Army said the policy was necessary to keep units of seasoned personnel together, preventing instability that could come with recruits or transfers from other units. “Stop-loss is saying we don’t have enough people in this critical mission area in the Army, and we need to keep everybody around for a while,” said Lt. Cmdr. Greg Hicks, a Pentagon spokesman.
The Sacramento-based soldier in the pending case is an eight-year veteran who has seen combat and is married with two children. He is assigned to the 2668th Transportation Company, a 170-member unit activated for 18 months. It is training at Ft. Lewis, Wash.
Court papers said the soldier’s family faces financial hardship while he is deployed because they will lose the income from his civilian job.
The government must file an additional brief by Nov. 22 before the judge issues a decision.