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Army Guardsman Sues to Get Out

California Man Challenges Military's 'Stop-Loss' Rule

Wednesday, August 18, 2004; Page A11

SAN FRANCISCO, Aug. 17 -- A decorated combat veteran filed a lawsuit Tuesday asserting that the government cannot prevent reservists from leaving the military when their enlistment periods end.

The suit against Defense Secretary Donald H. Rumsfeld and other military officials names the plaintiff as John Doe. It says he served in the Marine Corps and Army for nine years on active duty and three years as a reservist.

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"This lawsuit seeks to stop the forced retention of men and women who have fulfilled their service obligations," said attorney Michael Sorgen. "When their period of enlistment ends, they should be entitled to return to their families."

He called the suit the first of its kind.

The Army has issued "stop-loss" orders preventing tens of thousands of soldiers designated to serve in Iraq and Afghanistan from leaving the military if their volunteer service commitment ends during their deployment.

The Pentagon has relied heavily on reservists to fight in Iraq and Afghanistan.

"The order violates Doe's right to due process and the terms of his enlistment contract, and is contrary to law," the lawsuit reads. "The involuntary extension of Doe's military enlistment constitutes a serious infringement on his liberty protected by the Constitution."

The San Francisco-area man, who filed the lawsuit in U.S. District Court for Northern California, fought during the invasion of Iraq. Married with two young daughters, he is seeking a release from service when his Army National Guard term ends in December.

The suit names the plaintiff's commander as Capt. Kincy Clark, who heads Bravo Company of the 1st Battalion, 184th Infantry Regiment, based in Dublin, Calif. The unit reported for duty Monday and is expected to train for several months before going to Iraq in February or March.

"We have some soldiers who are obviously not overjoyed about being deployed," Clark said in a telephone interview. "I have had to look them in the eye and say, 'Hey, you are going.' "

He added that reservists know when signing up that "stop loss" or extension of service is a possibility.

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