Captain Brad Schwan Fighting Stop Loss
Captain Brad Schwan, a West Point graduate, is suing to get out of the Army Reserves.
Brad Schwan went to the U.S. Military Academy because he thought the quality education and service to his country would make solid building blocks for his future. He never thought he might serve the better part of his life in the Army. Now, nearly a year after he says his eight-year commitment to the Army expired, the Simi Valley captain is facing the prospect of serving “for an indefinite term” because he can “be held during the pleasure of the President,” according to documents in the case of Bradley E. Schwan v. Donald Rumsfeld, secretary of defense, et al.
“I served my time, and I want control of my life back,” said Schwan, 30, who is graduating from the UCLA School of Law in May and serving as his own lawyer. “I’m being told that I have to serve involuntarily — that’s a draft.”
A policy called stop-loss that legally keeps troops in the service longer than expected has been commonplace since Sept. 11, 2001, and a handful of cases against the government regarding the policy have had varying degrees of success. Some troops have been honorably discharged while others were ordered to stay in the military. But Schwan did not have a stop-loss order in this instance, which makes his case unique.
Schwan signed on for five years of active duty and three years in the Army Reserves, but during his fifth year of active duty in 2001, he received stop-loss orders and ended up doing six years of active duty. He was aware of the policy and accepted his extended time. He still says if he were officially given a stop-loss order today he’d serve his time honorably.
He then joined Individual Ready Reserve in 2003, which is like the Army Reserve without the monthly and yearly training. But a year into his IRR service, he said, he was told by a recruiter that if he didn’t join the Army Reserves there was a good chance he could be sent to the Middle East. He joined the Army Reserve but said that claim of being sent overseas was erroneous. If he had stayed in the IRR instead of joining the Army Reserve he would have already been discharged from service, he said.
In 2005, a few months before the end of his eight-year stint, Schwan submitted his resignation papers to the Army Reserve, as is protocol. He wanted to finish law school, and he and his wife had a young daughter. Though his request was initially accepted, it was eventually denied as it climbed through the ranks. The reason cited was that the Army Reserve was facing a critical shortage of officers, and he did not supply an adequate reason for a discharge.
In its motion to dismiss the case, the government says Schwan’s claims are without merit, and the policy of keeping officers for an indefinite term is an established practice, among other arguments. Michael Noone, a professor of national security law at the Catholic University of America Columbus School of Law, said any lawsuit against the government is an uphill battle. For an officer to resign, the government must also agree to the conditions, he said. “The contract is he accepted a commission with the U.S. government, and nobody can withdraw on their own from the commission,” Noone said.
He said this in no way undermines his devotion to the country and the cause which it is fighting for. It’s just that he says he’s done his part. “I’ve lived up to my obligation,” he said. “I didn’t volunteer to serve forever, I volunteered to serve for eight years.”
Noone is almost certainly right on the law but Schwan is right on the fairness issue. He did not complain when, as was their right, the Army denied him a transfer to the Reserves at the end of his active duty commitment. But, while we have traditionally required people to serve “for the duration” during wartime, that was when we had a draft.
Keeping people who signed up for two or three years of active service on board for their eight year statutory obligation is harsh but at least in the spirit of their contract. Forcing them to stay beyond eight years in an era where those who did not volunteer for service have no obligation whatsoever strikes me as woefully unfair. Not to mention counterproductive to the longer-term need to keep the stream of volunteers coming in.
More on his case and others at Military Injustice
Related posts below the fold.
Elsewhere: James Joyner, “Backdoor Draft?” TCS, 11 January 2005.
OTB: Military Personnel, General
Don’t Dumb Down the Army
Join the Army or Go to Jail?
Reserve Captain Fulfills Contract, Can’t Resign
Army Stop-Loss Program Forces 50,000 into Extended Duty
Pentagon Report: Army Near Breaking Point
Pentagon Weighs Guard and Reserve Cuts
Myth of the Underprivileged Soldier
9th Circuit Won’t Stop Guardsman’s Deployment
Soldiers Sue over Extended Enlistments
A Military Stretched Thin
OTB: Military Recruiting
Army Facing Officer Retention Crisis?
Army Shuns 75 Percent of Age Eligible Recruits
Counter-Recruiting Efforts Anger Pentagon
Military Recruiting Shortfall Hits Key Jobs Hardest
Military Attracting Fewer Black, Urban Recruits
Army Doubles Idiot Quotient
Army Recruiting High School Dropouts without GED
Defense Department Seeks to Raise Enlistment Age to 42
Pentagon Creating Student Database for Recruiting
Army Keeping Problem Soldiers to Keep Troop Levels Up
Army Using Video Game as Recruiting Tool
Army Offers 15-Month Enlistment Option
Army Taking Recruiting Holiday
Blue to Green Moving Slowly
Army Recruiters Say They Feel Pressure to Bend Rules
Recruiting Soldiers During Wartime Difficult
Military Recruiters Target Friends and Family
Recruiting During Wartime
RECRUTING AND MORALE
Army Not Punishing AWOL IRR Members
Backdoor Draft? Reservists May Face Longer Tours of Duty
IRR Call-Ups Slow to Report
Army to Call Up Recruits Earlier
Reserve System Needs Change
Further IRR Call-Up Expected
IRR Call-Up Redux
IRR Call-Up Scam III
IRR Call-Up Scam II
IRR Call-Up Scam
Leaving the Military Reserves
What didn’t the young Captain understand? I retired 17 years ago after 20+ years in the Navy. I’m subject to recall, and I knew that then,
Tom: You’re subject to recall because you’re on the retired list receiving a retainer of 50-plus percent of your monthly base pay. Typically, one who has completed one’s statutory obligation is done.
As a matter of precedent, the military has the right to keep people in. But that precedent goes to an era when people were being drafted. That time ended 33 years ago.
Episode 8, Monty Python:
Cut to colonel’s office. Colonel is seated at desk.
Colonel: Come in, what do you want?
Private Watkins enters and salutes.
Watkins: I’d like to leave the army please, sir.
Colonel: Good heavens man, why?
Watkins: It’s dangerous.
Watkins: There are people with guns out there, sir.
Watkins: Real guns, sir. Not toy ones, sir. Proper ones, sir. They’ve all got ’em. All of ’em, sir. And some of ’em have got tanks.
Colonel: Watkins, they are on our side.
Watkins: And grenades, sir. And machine guns, sir. So I’d like to leave, sir, before I get killed, please.
Colonel: Watkins, you’ve only been in the army a day.
Watkins: I know sir but people get killed, properly dead, sir, no barley cross fingers, sir. A bloke was telling me, if you’re in the army and there’s a war you have to go and fight.
Colonel: That’s true.
Watkins: Well I mean, blimey, I mean if it was a big war somebody could be hurt.
Colonel: Watkins why did you join the army?
Watkins: For the water-skiing and for the travel, sir. And not for the killing, sir. I asked them to put it on my form, sir – no killing.
Colonel: Watkins are you a pacifist?
Watkins: No sir, I’m not a pacifist, sir. I’m a coward.
Colonel: That’s a very silly line. Sit down.
His plight sounds much like the horror stories
I read of the french foreign legion,as a child.People should realize that we are unlikely to have a draft again.There are far too many elitists in control.In initializing a draft there would be loud demands for the draft lottery.That lottery had a lot to do with the ending of the Vietnam war.It was becoming harder for the privileged to hide.There are only so many, stateside postal and air national guard units.once you sign military promises, they keep the signature and forget the promises.From then on, your rights are, what the government says they are.Only those who have enough power on their side will recieve any justice.Delbert W Allegood npublici
This is awful. The good old U.S. Army has press gangs. I hope the Capt. wins his suit. What a disgrace this administration has brought to the military.
Officers serve, technically, at he discretion of the president. The Army has the right to extend contracts if they so desire. Certainly, Schwan could not have been unaware of what was going on around him, and should not have been surprised. Now he wants to cancel his side of the contract because it would be inconvenient to keep it. Unfortunately, you can not divorce the military. You have to live up to your side of the bargain.
Very likely this officer has a significantly better education than the recruiter who told him that. If he can’t see through the BS, as the lowliest of enlisted soldiers do every day, then he will not make a very good lawyer.
Take a look at the guy’s website. He didn’t just blindly listen to the recruiter. He called the head of personnel for his branch who (apparently lied and) verified the veracity of the memo.
And he had already been stop-lossed before. Why shouldn’t he have believed it. In hindsight, now that the recruiter’s pitch has been exposed for the fraud it was, it is easy to criticize, but if you have moved on with your life and getting mobilized would screw up your education, what would you do? Sit back and hope for the best, or be proactive and try to remedy the situation as best you could given the circumstances. That’s all it looked like the Captain did. Read OTB’s other articles on the “scam.” There was a significant boost in recruiting after this memo. Are all those people uneducated, or just used to a military ready to screw them at the next turn?
If you have been in the military, it doesn’t take much of an education to realize that you get screwed on a daily basis. It’s not hard to believe that.