Stop-loss policy

Stop-loss policy

Stop-loss is a term primarily used in the United States military. In the U.S. military, it is the involuntary extension of a service member's active duty service under the enlistment contract in order to retain them beyond their initial end of term of service (ETS) date and up to their contractually agreed end of obligated service (EOS). It also applies to the cessation of a permanent change of station (PCS) move for a member still in military service. Stop-loss was used immediately before and during the first Persian Gulf War. Since then, it has been used during deployments to Somalia, Haiti, Bosnia, Kosovo and after the September 11 attacks and the subsequent War on Terror.

The policy has been legally challenged several times. However, federal courts have consistently found that military service members contractually agree that their term of service may be involuntarily extended until the end of their obligated service.

Contents

Legal basis

Stop-loss was created by the United States Congress after the Vietnam War. Its use is founded on Title 10, United States Code, Section 12305(a) 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 10(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."

Every person who enlists in a branch of the U.S. Armed Forces signs an initial contract with an eight (8) year service obligation. The enlistment contract for a person going on active duty generally stipulates an initial period of active duty from 2 to 5 years, followed by service in a reserve component of the Armed Forces of the United States for the remainder of the eight year obligation.[1] Service members whose ETS, retirement, or end of service obligation date falls during a deployment may be involuntarily extended until the end of their unit's deployment.

Controversy

The controversy regarding stop-loss focuses mainly on the aspect involving "involuntary extension" of a service member's initial active duty service obligation. For service members opposed to involuntary extension, it represents implementation of a desultory clause in their contract which alters their expectation of an end of term of service date. It also exposes them to the risk of an additional or prolonged combat deployment. For opponents of a current armed conflict, the public perception of "involuntary extension" is contrary to the notion of voluntary service and undermines popular support for the conflict.

In a campaign speech in 2004, then-presidential candidate John Kerry described stop-loss as a "backdoor draft."[2] The use of stop-loss has been criticized by activists and some politicians as an abuse of the spirit of the law, on the basis that Congress has not formally declared war, such as is the case in the Iraq War.

During August 2007, Iraq Veterans Against the War, an activist organization of former and current service members, announced a national "Stop the Stop-Loss" campaign at a 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.

On March 10 and 11, 2008, a group of college students, from the organization Our Spring Break, supported by Code Pink and Iraq Veterans Against the War, as well as several other organizations, issued symbolic stop-loss "orders" to every member of both the United States House of Representatives and the United States Senate in protest of both the practice of stop-lossing, and of the Iraq War. On March 12, 2008, the students "enforced" the orders by blocking off the exits to the parking garages of the Rayburn House Office Building and the Hart Senate Office Building.[3]

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.[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. Lamberth 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]

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 Army states that enlisted soldiers facing stop-loss can now voluntarily separate by request, under provision 3-12, but only after they complete an involuntary deployment of twelve to fifteen months and 90 days stabilization time (time allowed to "out-process" from the military) can they apply.

This refers to an Army policy dated Sept. 5, 2002. It allowed enlisted soldiers under stop-loss to voluntarily separate on the first 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; and 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.

Despite Secretary Gates's order, by April 2008 use of stop-loss had increased by 43%.[9] Soldiers affected by stop-loss were then serving, on average, an extra 6.6 months, and sergeants through sergeants first class made up 45% of these soldiers. From 2002 through April 2008, 58,300 soldiers were affected by stop-loss, or about 1% of active duty, Reserve, and National Guard troops.[10]

Reduction in the use of stop-loss

In March 2009, Gates ordered a deep reduction in the number of personnel affected by the stop loss policy.[11] "Gates said the goal is to reduce that number by 50 percent by June 2010 and to bring it down to scores or less by March 2011"

Etymology

This phrase has been in place for decades in the financial sector, known as a stop loss order. Investors can put such an order in place to limit their financial losses by automatically selling their stock at a pre-set price when stock is falling, which does not require a separate order to sell.

In the media

A film titled Stop-Loss, released March 2008, details the fictional story of a soldier (played by actor Ryan Phillippe) who went absent without leave from the military after being notified he was being "stop-lossed."

In an episode of the Canadian television series The Border, three fictional American soldiers desert to Canada by swimming in the Niagara River, using "Stop-Loss" as their legal basis for refugee status.

In "Witches of Mass Destruction", an episode of the American television series Boston Legal, Alan Shore represents a client suing the US Military for the loss of her brother, who had to stay in Iraq beyond the time specified in his National Guard service contract due to the "Stop-Loss" program.

In "Moving the Chains", an episode of the American television series House, a patient confesses to Gregory House that he has been served with a "Stop-Loss" order after completing his enlistment service.

See also

References

  1. ^ "DD Form 4/1 - Enlistment Contract" (PDF). Rethinkingschools.org. http://www.rethinkingschools.org/archive/19_03/military_enlistment.pdf. Retrieved 2007-12-06. 
  2. ^ White, John (June 3, 2004). "Soldiers Facing Extended Tours". The Washington Post. http://www.washingtonpost.com/wp-dyn/articles/A10961-2004Jun2.html. Retrieved 2007-10-15. 
  3. ^ Stop-Loss Congress : Stop-Loss Congress
  4. ^ Find 1st Minnesota Soldiers
  5. ^ Murphy, Dean E (August 18, 2004). "Soldier Sues Over Tour Made Longer". The New York Times. http://query.nytimes.com/gst/fullpage.html?res=9901E1DD113FF93BA2575BC0A9629C8B63. Retrieved 2007-10-15. 
  6. ^ "Qualls v. Rumsfeld" (PDF). U.S. Courts.gov. http://www.dcd.uscourts.gov/opinions/2005/2004-CV-2113~14:21:25~3-1-2005-a.pdf. Retrieved 2007-12-06. 
  7. ^ "Doe v. Rumsfeld". 9th U.S. Circuit Court of Appeals. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/D418158D930E7F78882570F4000815CD/$file/0515680.pdf?openelement. Retrieved 2007-12-06. [dead link]
  8. ^ "Santiago v. Rumsfeld". 9th U.S. Circuit Court of Appeals. http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3F674E8F6048714988256FFF007E8110/$file/0535005.pdf?openelement. Retrieved 2007-12-07. [dead link]
  9. ^ Vanden Brook, Tom (April 21, 2008). "DoD Data: More Forced to Stay in Army". USA Today. http://www.usatoday.com/news/military/2008-04-21-stoploss_N.htm. Retrieved 2008-04-30. 
  10. ^ "DOD data: More forced to stay in Army". USA Today. 2008-04-23. http://www.usatoday.com/news/military/2008-04-21-stoploss_N.htm. Retrieved 2010-05-24. 
  11. ^ Ann Scott Tyson. Army to Stop Extending Tours Beyond Service Obligations. March 18, 2009

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