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.
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