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Stop-loss policy

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Stop-loss, in the United States military, is the involuntary extension of a servicememeber'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.

Contoversial legality is based on court findings that claim soldiers contractually agree to involuntary extensions, but its basis in dubious semantic contractual language has left it a subject of controversy both legally and publicly.

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". [1]

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."[2] The use of stop-loss has been criticized by anti-war activists as an abuse of the spirit of the law, due to the fact that Congress has not declared war, such as is the case in the Iraq War.

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.

The National Lawyers' Guild and the Military Law Task Force have also initiated efforts to end what they view as an illegal federal practice. [3]

The first known legal challenge in American history to the extension of a soldier's contract occurred during the American Civil War, when Private Edward A. Stevens filed suit against the federal government for breaking his three-month enlistment. The prosecuting party for the government was Edwin Stanton, Secretary of War. [4] 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.[5] 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. [6]. 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. [7] The Ninth Circuit also rejected another similar appeal in Santiago v. Rumsfeld in May, 2005. [8]

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).

The Army claims that enlisted soldiers facing stop loss can now voluntarily separate from the United States Army 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.

See also

  • 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.

References

  1. ^ >"DD Form 4/1 - Enlistment Contract" (PDF). Rethinkingschools.org. Retrieved 2007-12-06.
  2. ^ White, John (June 3, 2004). "Soldiers Facing Extended Tours". The Washington Post. Retrieved 2007-10-15. {{cite news}}: Check date values in: |date= (help)
  3. ^ >"National Lawyers Guild Military Law Task Force StopLoss". National Lawyers Guild. Retrieved 2006-12-04.
  4. ^ http://1stminnesota.net/SearchResults.php3?ID=0218
  5. ^ Murphy, Dean E (August 18, 2004). "Soldier Sues Over Tour Made Longer". The New York Times. Retrieved 2007-10-15. {{cite news}}: Check date values in: |date= (help)
  6. ^ >"Qualls v. Rumsfeld" (PDF). U.S. Courts.gov. Retrieved 2007-12-06. {{cite web}}: Check |url= value (help)
  7. ^ >"Doe v. Rumsfeld" (PDF). 9th U.S. Circuit Court of Appeals. Retrieved 2007-12-06.
  8. ^ >"Santiago v. Rumsfeld" (PDF). 9th U.S. Circuit Court of Appeals. Retrieved 2007-12-07.
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