Monday, May 16, 2005
U.S. Law Authorizes Extension of Guard Enlistments—Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
A federal statute allows the Department of Defense to extend enlistments of members of the National Guard who have not been yet been deployed, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The court issued its opinion a little more than one month after affirming a district judge’s denial of an injunction that would have blocked an Oregon reservist’s deployment to Afghanistan. The judges at that time denied Emiliano Santiago’s motion for an order blocking his deployment pending further appeals.
Santiago, 27, lives in Pasco, Wash., and belongs to 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, but in April of last year, less than three months before he was scheduled to be discharged, the Army alerted Santiago’s unit that it might be mobilized.
Santiago’s termination date was subsequently extended more than 27 yearsóto December 2031.
Last October, Santiago learned that the Army planned to activate his unit Jan. 2 for six weeks of basic training at Ft. Sill, Okla. followed by deployment to Afghanistan in early February. He filed the lawsuit Nov. 30 and obtained a temporary delay,
Under the terms of enlistment, the Army can extend under certain emergency circumstances the tour of National Guard soldiers for up to two years. But the enlistment agreement, Senior Judge William Canby noted Friday, specifically says that terms and conditions of service may be altered pursuant to federal law.
The “stop-loss” orders that have kept Santiago and thousands of other guard members and reservists in service beyond their original commitments are authorized by 10 U.S.C. Sec. 12305(a), Canby said.
The statute provides:
“Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty pursuant to an order to active duty...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.”
Canby rejected Santiago’s contention that he was not subject to the statute because his enlistment contract expired prior to a call to active duty. The mobilization alert that his unit received was sufficient to invoke Sec. 12305(a), the judge said, according to the plain language of the statute.
Canby noted that the Army adopted a stop-loss policy for all guard units in November 2002, providing for the extension of “all enlistments, reenlistments, extensions, and periods of service” for members whose units are “alerted or ordered to active duty” including “units that are mobilized or have been alerted, but not yet mobilized.”
Sept. 11 Order
The policy is authorized by Sec. 12305(a), Canby said, because the president issued an executive order in the wake of the Sept. 11, 2001 terrorist attacks, declaring a national emergency and invoking his authority to order reserve units to active duty. Canby agreed with the district judge that all members of the Army National Guard have been serving on active duty, for purposes of Sec. 12305(a), since the order was issued.
The order is set to expire Sept. 10 of this year unless renewed.
Canby went on to reject Santiago’s contention that the government violated his due process rights by not adequately explaining the circumstances under which his enlistment could be extended. The explanation in his enlistment agreement, in which he acknowledged that “[l]aws and regulations that govern military personnel may change without notice to me,” was sufficient, the appellate jurist said.
The case is Santiago v. Rumsfeld, 05-35005.
Copyright 2005, Metropolitan News Company