The Military Stop Loss Program
The Stop Loss Program in the United States military can be defined as the involuntary extension of member of the United States military into active duty under the enlistment contract. This program ensures that service members are retained beyond the due duration in which they were supposed to have ended their normal separation date. The Stop Loss Program is legally based on Title 10 of the United States Code, Section 12305(a) which states in part that:
… 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. During enlistment, those who join the military agree to additional provisions which are spelled out in paragraph 9(c) of DD Form 4/1; The Armed Forces Enlistment Contract which states that:
In the event of war, my enlistment in the Armed Forces continues until six (6) months after the war ends, unless my enlistment is ended sooner by the President of the United States. The Department of Defense maintains the understanding that the term war in the clause refers to any time the United States Armed Forces are in military engagement and does not only refer to war if such a hostile conflict has been approved by the Congress. It is upon this understanding that constitutional interpretation controversies arise.
The Stop Loss program has authority from statute and allows the United States military to retain trained, experienced and skilled military manpower through the suspension of regulations, laws and policies that govern separations from duty inclusive of retirement. Military personnel affected by the order have no authority to voluntarily retire or leave the service in the event that Reserves have been called to duty or unless such personnel have been released by the proper authority; in this case the President of the United States of America.
Basically there are two types of Stop Loss programs that are applicable to soldiers in the Reserve Components (RC): the Skill-Based Stop Loss and the Unit Stop Loss. Currently the only type of Stop Loss that has been effected is the RC Unit Stop Loss (Rush 2006). In normal circumstances, the Military Personnel Office (MILPO) coordinates with the unit and compares authorized and projected positions with regard to the current assigned strength as well as the established or projected gains and losses to accurately determine the requirements for the assignments.
Preparations of requisitions for the determined requirements are then submitted to the Human Resources Command (HRC) for receipt. The Human Resources Command edits and validates the submitted requisitions. The requisitioning unit has the responsibility of ensuring that there is no under or over requisition as well as the resolution of any discrepancies before submission of the validated requisition for final processing. After processing soldiers become available for assignments based on these requisitions.
For those enlisted in the Army, their availability for assignments begins immediately after the completion of training and the consequent award of an MOS. Others become available after they have either volunteered for reassignment, completed schooling or training completed an overseas tour duty, completed a stabilized tour of duty or completed the normal time allocated for service on station in the continental U. S for a given MOS. Turnaround times vary with each given MOS (Rush 2006). The Congress first gave the Department of Defense the authority to exercise the Stop Loss program just after the draft ended.
However, this authority was not exercised until later in 1990/1991 during the Gulf War. During this period the Bush Senior government imposed the program on virtually every single individual in the United States military. Later on, revisions were done on the original Stop Loss program to include only those who were deployed and persons in certain critical job skills like military pilots. President Clinton also imposed the program at the commencement of the Bosnia deployment and later on during the Kosovo Campaign.
After the terrorist attacks on the World Trade Center in September 11, Stop Loss was imposed briefly, then in 2002 and 2003. Currently the program only encompasses personnel on active duty in the Army, the Army Reserves as well as the Army National Guard. Additionally, it only has effect on individuals who are deployed or had prior notification of scheduled deployment. Such service members are prevented from seeking separation or retirement from the date of deployment notification to a period of 90 days following their return from deployment.
During the Persian Gulf conflict, one of the personnel management actions that was taken to support the military forces in the Operations Theater was the Executive order 12728, dated August 22, 2007 suspended the laws that related to the promotion, separation and retirement. The implementation of the Stop Loss program increased personnel strength, ensured force stability, and provided a sufficient supply of manpower that were fully trained and readily available for deployment anywhere in the world.
When it was decided that an offensive force should be deployed, the Stop Loss program was expanded with the aim of maintaining unit integrity and ensure the retention of personnel in possession of critical skills. While it was congruent to the masses expectations that the contingents in Iraq and Afghanistan would remain in these countries for years, civilian leaders in the Department of Defense did not in their wildest dreams expect troops of more than 100,000 to be used for these missions. The US military being an all volunteer force had been hard pressed in terms of numbers while engaged in long term large scale military missions.
Due to this the Bush administration seriously relied on the Reserve and National Guard soldiers for providing the necessary combat personnel even though these soldiers are traditionally reserved for their traditional combat roles. Due to the thin spread of troops during these two missions, the Pentagon announced that they would extend the Stop Loss program to meet the troop surge demands in Iraq and Afghanistan. Such an assertion has raised concerns on the validity of the existence of an all volunteer military force (Dolan 2005).
Constitutional controversies mainly involve the involuntary extension of a service member’s initial active duty obligations. For service members that are opposed to the imposition of the Stop Loss statute to ensure involuntary extension of their service obligations, the clause is representative of an implementation of a desultory clause enshrined in their contracts that completely alters their expectations of an end of term of service date. The desultory clause also exposes them to the increased risk of being forced into prolonged combat deployment.
Drawing from the public’s perception of involuntary extensions of service durations during periods of armed conflict, the imposition of the Stop Loss clause undermines the citizen’s popular support for such conflicts. Many individuals advocating for the repeal or abolition of the Stop Loss clause are never familiar with the provisions of enlistment contracts that provide for an eight years service obligation. This constitutional provision is contained in paragraph 10(a) of the Armed Forces Enlistment Contract which states that:
If this is my initial enlistment, I must serve a total of eight (8) years. Any part of that service not served on active duty must be served in a Reserve Component, unless I am sooner discharged. Politicians have been quick to point out the potential abuse of these clauses by the sitting administration. Given the presence of the initial enlistment provision that satisfies the eight year obligation, Presidential Candidate John Kerry in his presidential campaign speech described the Stop Loss program as a back door draft.
The program has also been criticized by several activists that it gives the politicians the power to abuse the spirit of the Law, in that during the institution of the statute, the term war was used to imply only cases where the Congress has declared war. However, some historical accounts of military engagements and the imposition of the clause undermine this interpretation since cases like Iraq war did not receive Congress approval. Implementation of the Stop Loss clause with the sole aim of forcing the soldier to remain in uniforms beyond the end of their enlistment periods is a contributing factor to the desertion of the American soldiers.
Those in combat and planning their lives after the end of their enlistment period resent such a clause as it undermines their commitment to their countries military objectives. Their lives are disrupted to the point that they desist from planning their future lives. There are several accounts of soldiers who have been pulled out of line waiting for a plane to take them home and told that there deployment has been extended. Tearfully, these soldiers have to inform their families who are waiting and anxious and waiting that the reunion has been postponed.
Apart from the psychological effects of such impositions on both the soldiers in the combat zone and their families who have to endure the agonies of constant worry and anticipations, the morale on the combat zone is undoubtedly and seriously affected. After the clause is implemented, deserters are completely forgotten by the government and they can be replaced with fresh recruits after their terms end. For those who are not completely forgotten, they are pursued and charged in the military justice system (Fantina 2006).
These actions are completely unjust and against the validity of the volunteer military force. The first legal challenge of the involuntary extension of the enlistment contract of soldiers happened during the American Civil War when a suit was filled by Private Edward A Stephens against the Federal government’s action of extending his enlistment contract. At that time, the prosecuting party was Edwin Stanton. Stephens lost the suit and was subjected to confinement for a brief period of time for mutinous conduct.
In August 2004, David Qualls; a National Guardsman in California was the first to filed a legal challenge against the Stop Loss Program. He argued that according to the enlistment contract, the military had breached the contract by involuntarily extending his enlistment. The sitting judge; Royce C. Lamberth dismissed the suit and Qualls never appealed against that decision. In the same year in October, an anonymous National Guardsman filed a similar suit but it was again dismissed. Upon appeal, the Ninth U.
S Circuit Court of Appeals upheld the courts findings. A successive suit and consequent appeal; Santiago v. Rumsfeld in May, 2005, was equally unsuccessful. Due to these legal suits, the then Secretary of Defense: Robert Gates circulated a memo to the extent that the imposition of Stop Loss orders should be minimized. This led to the current development where a soldier facing a Stop Loss order is given the chance to voluntarily separate subject to a request provided under provisions 3-12.
However, these requests can only be deemed feasible when these soldiers have completed an involuntary deployment for a period of between 12 and 15 months and an additional 90 days stabilization time. These provisions are constitutive of the Army policy of September 5, 2007. In the policy, enlisted soldiers are allowed voluntarily separation on the first anniversary that comes after the original expiration of service or ETS date. Despite this policy there is limited change in the imposition of the Stop Loss program, in fact there has been an increase in the number of soldiers under Stop Loss.
Therefore, while military leaders are trying to make sensible the underlying Army policy that called for a reduction of the application of the Stop Loss, the Associated Press reported that there were approximately, 12,000 soldiers currently serving under the program (Squitieri 2004). The historical testaments of the impositions of the Stop Loss order show that in almost all, the cases of American military deployment such as in the Persian Gulf War, Somalia, Bosnia, Haiti , Kosovo, the September 11 terrorist attacks and the current War on Terror, the program, has been used to meet the military manpower demands.
The policy has also been legally challenged by several members of the military service who feel that the military had failed to adhere to the terms of the contract but in all the cases these suits have been shot down due to the consistency of the agreements which specifically state that the applicant has agreed to the terms of the contract and that their terms of entitlement could be voluntarily extended in accordance to the contracts provisions.
Based on the enlistment contract itself and the spirit of the law at the time of instituting such a clause, the current challenges on the illegality of the contractual interpretation are most likely to fail in the courts of law. However, there is a chance that a novel interpretation of the term ‘war’ as specified in the contract may alter the currently held interpretation of the contract.
For instance, when we disregard the Department of Defense definition of war as any hostile conflict in which the United States is involved in, it may be possible to challenge the illegality of the current constitutional interpretation based on the understanding that the term ‘war’ can only be used to imply to a military engagement or a hostile conflict only in cases where such a war has been passed by the Congress.
Such an interpretation may prevent the implementation of the statute in wars that have not achieved Congress approval like the Iraq case. Additionally, it may serve to prevent political office holders from misusing the spirit of the law in advancing their own ulterior motives or military objectives that are not congruent to the popular public perception as well as the Congress.
A case in point is the Iraq war, where to maintain the troop surges, individuals have been subjected to unaccountable agonies due to last minute changes in their deployment status. The various accounts of soldiers who have been pulled out of line waiting for a plane to take them home and told that there deployment has been extended will become history as well as the psychological torture, anxiety and anticipations that their families have been subjected to over the years when receiving news that their son or father may not be coming home after all.
On the basis of the nature of the United States military; which is an all volunteer military force by constitutional placement, it can be argued that the clause in the enlistment contract is against this constitutional dispensation. While the public has for decades understood and supported the all volunteer nature of the military force, such a clause serves to dampen the commitment of the citizenry in fighting for their country while serving in a military capacity.
A point in mind is the blatant manner in which the Stop Loss orders are implemented without due regard neither for public opinion nor the soldiers’ psychological health. There are several accounts of completely demoralized soldiers who having prepared to get out of the horrific combat zones for the tranquility of home at least for a couple of months are forcibly returned to the same combat zones without any prior notification. The loss of moral and commitment is detrimental to the military successes of the United States of America.
With respect to the Army policy which was guided towards the reduction of troop numbers serving under the Stop Loss orders, such orders can only be appraised to have achieved their desired objectives, if comparative analyses of troops under such orders before and after the imposition are positive for a decrease. The current numbers of troops under such orders, particularly in Afghanistan and Iraq are still high. However, all is not lost as the current administration is gearing towards a gradual reduction in troop numbers in Iraq and a surge in Afghanistan to help stabilize the situation.
Should soldiers currently in Iraq return home as per the troop withdrawal timetable that would be a stimulant for the reduction of the number of soldiers under Stop Loss orders. But the real challenge for the present administration is ratifying the contractual agreements to eliminate clauses that propagate an involuntarily extension of a soldiers service beyond the stipulated end of contract without pertinent and reasonable explanations on the necessity of such a move.
Interpretations of the current nature and application of the Stop Loss orders are still going to be in line with the U. S Circuit Court of Appeals maintenance that such suits are not legally congruent. Given the fact that recruits are in the know of the broad implications of the clause even before they agree to the terms of the Armed Forces Enlistment Contract, they are obliged to accept involuntary extensions of their deployment as stated in the contractual agreements.
References Dolan, J. C. (2005). In War We Trust: The Bush Doctrine and the Pursuit of Just War. Ashgate Publishing, Ltd. p. 212 Fantina, R. (2006). Desertion and the American Soldier, 1776-2006. Algora Publishing. p. 194-195 Rush, S. Robert. (2006). NCO Guide: Stop Loss Program. Stackpole Books. p. 195-196 Squitieri, T. (2004). Army Expanding “Stop Loss” Order to Keep Soldiers From Leaving. USA Today. http://www. usatoday. com/news/nation/2004-01-05-army-troops_x. htm
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