Soliders Fails to Halt 'Stop-Loss' Rule

An Oregon Army National Guardsman must report for duty after failing in his challenge of a military program that extends his enlistment.

In a federal lawsuit, Sgt. Emiliano Santiago argued he was improperly called to active duty after his formal eight-year contract with the Oregon Guard had ended. The case centered on the Department of Defense's "stop-loss" policy, which has generated lots of debate in the past year as thousands of soldiers were barred from leaving Iraq and Afghanistan even though their enlistment terms had been fulfilled.

U.S. District Judge Owen M. Panner on Tuesday denied Santiago's motion for a preliminary injunction, less than a week before the soldier is due to report for active duty in Fort Sill, Okla.

Panner said he thought the military would endure more harm than Santiago if he ruled in the soldier's favor, essentially agreeing with the government's argument that thousands of military members who are subject to stop-loss orders might file similar legal challenges.

Although Army officials have worked out alternative arrangements with a few Guard officers, no court has ruled against the military's stop-loss policy. Panner's ruling is not an end to the case, but a judgment that Santiago likely would not prevail. The full merit of the case could still be heard.

After the hearing, Steven Goldberg, Santiago's lawyer, said the Bush administration has been defending the stop-loss policy because it has no other way to maintain troop strength.

"A back-door draft like this is an extraordinary method," he said, "and they're doing it because they're having trouble sustaining the ranks."

Santiago, 27, lives in Pasco, Wash., but is a solider with D Company of the Oregon Guard's 113th Aviation Battalion, based in Pendleton. He signed up for an eight-year tour beginning June 28, 1996. In April, less than three months before he was scheduled to be discharged, the Army alerted Santiago's unit that it might be mobilized.

As a result, Santiago's termination date was extended more than 27 years — to December 2031. In October, Santiago learned that the Army planned to activate his unit Jan. 2, 2005, and deploy the solider to Afghanistan in early February.

Matthew Lepore, a Justice Department attorney arguing the government's case, told Panner he should follow previous court rulings, which give deference to the military in making such policy decisions. He said soldiers are told that they give up certain rights afforded to civilians and acknowledge in their contracts that the rules that apply to them can change.

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12/29/2004, 12:11 a.m. PT
The Associated Press

Information from: The Oregonian