On May 12 the Pentagon won the latest in a series of legal battles over its “stop-loss” policy, which keeps soldiers on active duty after their contracts have expired.
Critics call the policy a “back door draft,” since volunteers must serve against their will.
The U.S. 9th district Court of Appeals ruled (PDF) that Emiliano Santiago, a National Guard Reserve sergeant, had to follow orders to remain with his unit after completing his eight year contract.
The court said that since Santiago’s unit was mobilized before his contract expired, it was legal to keep him.
An executive order activated stop-loss in November 2002, according to PBS.org.
The policy bars voluntary separations and retirements for soldiers beginning 90 days before deployment until 90 days after their units return home.
If the unit is coming from or going to Afghanistan or Iraq then the individual soldier must stay on duty for an indefinite amount of time.
Stop-loss was first implemented in the 1991 Gulf War. Since being renewed, the policy has affected over 50,000 troops.
Although the policy comes at a time of record-low recruiting rates, the Army said the goal is to prevent combat units from losing cohesion and skills as troops rotate in and out of service.
In Santiago’s defense, Joshua Sondheimer from the Military Law Task Force of the National Lawyers Guild argued that an enlistment contract can be extended if there is an official declaration of war, which is not the case for the Iraq occupation.
According a December 2004 New York Times report, Santiago isn’t the first stop-loss case in federal court.
Eight soldiers affected by stop-loss filed a lawsuit in Washington D.C. claiming their Army contracts were misleading.
On February 7, 2005, U.S. District Judge Royce C. Lambert refused to issue an injunction requiring plaintiff David Qualls to be immediately released from service.
Although the injunction has been refused, the substance of the case is still pending.
Public awareness about the stop-loss policy is cited by Army officials as one reason for historically low enlistment rates.
Major General Michael Rochelle, the Army’s recruiting chief, described the current situation as “the toughest recruiting climate we’ve ever faced in the all-volunteer army,” according to the New York Times.
The Army is now offering a 15 month active-duty commitment, the shortest ever, in an effort to boost recruitment.
Recruiters have been under fire recently for questionable practices, according to USA Today.
This includes recruiters offering fake high school diplomas. In response, the Army will stop recruiting for one day later this month to provide ethics training.
Critics say the decrease in time doesn’t allow for adequate skill training.
Senator Frank Lautenberg (D-NJ) introduced legislation in June 2004 to provide a $2,000 monthly bonus to soldiers serving beyond their term.
Lautenberg said that the pay could be justified under the same reasoning used to award bonuses to soldiers for hazardous duty, and would be considered as both compensation for active-duty soldiers and as an incentive for recruits.
The bill is currently stuck in committee.
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“Appeals court OKs forced military extensions”
ABC News, May, 13 2005
“The New Military?”
PBS.org, February 11, 2005 PBS
“Emiliano v Rumsfeld” (PDF)
9th Circuit Court of Appeals, May 13, 2005
“Eight soldiers plan to sue over Army’s stop-loss policy”
New York Times, December 6, 2004
“Army changes stop-loss, stop movement”
Army Public Affairs, June 3, 2004
“Qualls v. Rumsfeld”
Center for Constitutional Rights
“Army’s top recruiter says 2006 may be biggest test”
New York Times, May 13, 2005
“Army offers 15 month hitch”
USA Today, May 13, 2005
“Senator Lautenberg introduced legislation to compensate soldiers forced to extend military service”
Lautenberg Web site, June 4, 2004