Stop-loss policy

Stop-loss, in the United States military, is the involuntary extension of a servicemember's enlistment contract in order to retain them beyond the normal end term of service (ETS) or the ceasing of a permanent change of station (PCS) move for a member still in military service. It was first significantly used just before and during the first Persian Gulf War. Since then, it has been used during American military deployments to Somalia, Haiti, Bosnia and Kosovo during the 1990s and extensively after the September 11, 2001 terrorist attacks and the subsequent War on Terror.

Federal courts have consistently found that military servicemembers contractually agree that their term of service may be involuntarily extended, however the issue is still being debated in the public and political arena.

Legal basis

Stop loss was created by Congress after the Vietnam War. It has been used on the legal basis of Title 10, United States Code, Section 12301(d) which states in part: "The President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States" and Paragraph 9(c) of DD Form 4/1 (The Armed Forces Enlistment Contract) which states: "In the event of war, my enlistment in the Armed Forces continues until six (6) months after the war ends, unless the enlistment is ended sooner by the President of the United States".

Controversy

Stop-loss, as well as the practice of "involuntary extension", have been controversial. In a campaign speech in 2004, former presidential candidate John Kerry described stop-loss as a "backdoor draft." The use of stop-loss has been criticized by activists and politicians as an abuse of the spirit of the law, on the basis that Congress has not declared war, such as is the case in the Iraq War.

Note: Congress did not declare war on Iraq since the war is not with the total population of Iraq. Instead Congress authorized force to remove the leadership of Iraq for a number of reasons. Congress did by majority issue an "Authorization of the Use of Military Force", H.J.Res. 114 (Public Law 107–243) on October 10, 2002 which was signed by the President on October 16, 2002. Congress has previously not made formal declarations of war, while approving of use of military force, including the Revolutionary and Civil wars.

Iraq Veterans Against the War, an activist organization comprised of former and current service members, has announced a national "Stop the Stop-Loss" campaign at a recent press conference where they were holding a week-long vigil in a tower erected on the National Mall in Washington, D.C. Other anti-Stop-Loss vigils have occurred in Bellingham, Washington, and Colorado Springs, Colorado.

Legal Challenges

The first known legal challenge in American history to the involuntary extension of a soldier's enlistment contract occurred during the American Civil War, when Private Edward A. Stevens filed suit against the federal government for extending his three-month enlistment. The prosecuting party for the government was Edwin Stanton, Secretary of War. Stevens lost the suit and was confined for "mutinous conduct" for a brief period of time.

The first legal challenge to the contemporary stop-loss policy came in August 2004, with a lawsuit challenged by David Qualls, a National Guardsman in California. Qualls argued the military breached his enlistment contract by involuntarily extending his term of service, however his arguments were rejected by Judge Royce C. Lambert and the case was dismissed. . Qualls' case was not appealed.

In October 2004, a "John Doe" lawsuit was filed by an anonymous National Guardsman facing stop-loss, challenging the validity of the law that authorized it. This suit was dismissed at trial by Judge Frank C. Damrell and the court's findings were upheld by the Ninth U.S. Circuit Court of Appeals. The Ninth Circuit also rejected another similar appeal in Santiago v. Rumsfeld in May, 2005.

In another case, a former servicemember argued that his contract was completed, as he had already fulfilled his eight year IRR (Inactive Reserves) obligation. This guardsman's suit was ultimately successful.

Government response

Secretary of Defense Robert Gates, as one of his first acts in his position, penned a memo compelling commanders to "minimize" the stop-lossing of soldiers.

The United States Department of Defense now has begun a program to replace the stop-loss, as it has been deemed "too controversial". The new program, known as Involuntary Extension, is a circumvention of stop-loss, and simply changes the ETS [end time service] date on a soldier's LES (Leave and Earnings Statement).

Note: The above paragraph does not refer to a "new program". Instead it indicates the result of administrative action taken by military finance and personnel offices to continue to pay the service member and insure they do not separate from service before the termination of their individual stop loss status.

The United States Army claims that enlisted soldiers facing stop loss can now voluntarily separate by request, under provision 3-12, but this is only after they complete an involuntary deployment of twelve to fifteen months and 90 days "stabilization time" can they apply.

Note: This refers to an Army policy dated Sept. 5 (2002). It allowed enlisted soldiers under stop loss to voluntarily separate on the one-year anniversary of their original expiration of service or ETS date (under twelve month stop loss}. Officers and warrant officers, not retirement eligible, to apply to leave one year from the end of their original service obligation date. Officers and warrant officers without a service obligation to request separation 12 months after they were first affected by stop loss. Retirement-eligible soldiers to apply for retirement one year from their original retirement eligibility date (defined as 20 years active federal service) or one year from when stop loss took effect if the soldier was retirement eligible on the effective date of stop loss.

The 90 day "stabilization" refers to time allowed the service member to process their separation actions and in the case of PCS, soldiers changing station, time to process to their new station and allow leave time.

See also

• Conscription in the United States

• Individual augmentee policy The term used by the Department of Defense for their program of selecting Air Force and Navy Personnel and deploying them to a combat zone.

External links

• Eight soldiers plan to sue over stop loss policy
• "troops in Iraq... enlistment has been extended until December 24 2031" - by Rolling Stone magazine, The Return of the Draft 2005
• Ed Stevens, The first soldier to legally challenge to involuntary extension.