SACRAMENTO - A National Guard soldier lost his bid to avoid being sent to Iraq, but his challenge of a military program that involuntarily extends his enlistment in the service will continue in court.
U.S. District Judge Frank Damrell Jr. ruled Friday that there was no need for an injunction stopping the soldier's transfer to Iraq later this month because his California National Guard enlistment does not expire until May.
Damrell said the legal matter will be decided on its merits before then. If the unnamed soldier prevails, he can be sent home in the spring by court order.
The lawsuit challenged the military's "stop-loss" program that extends enlistment during war time or national emergencies. The program has been criticized by some lawmakers, including Democratic presidential nominee Sen. John Kerry, as a backdoor draft.
Stop-loss could keep tens of thousands of personnel in the military beyond their time of service.
The Army National Guardsman, identified only as John Doe to prevent harassment or reprisal against him or his family, filed suit last month claiming the policy doesn't apply to the National Guard.
His lawyers said the provision can be used only when Congress declares war and that troops can't be used for nation-building under a provision that allows extended service for a national emergency.
"He's being deprived of his liberty under an order he charged as unlawful," attorney Joshua Sondheimer said Saturday.
U.S. Justice Department attorney Matthew Lepore defended the policy and said it was authorized by an emergency executive order signed by President Bush three days after the Sept. 11, 2001, terrorist attacks.
The Army said the policy is necessary in times of war to keep units of seasoned personnel together, preventing instability that could come with recruits or transfers from other units.
"Stop-loss is saying we don't have enough people in this critical mission area in the Army, and we need to keep everybody around for awhile," said Lt. Cmdr. Greg Hicks, a Pentagon spokesman.
Stop-loss also was used during the buildup to the 1991 Gulf War.
Legal observers have said that if the guardsman prevails, more suits could follow.
The Sacramento case is the only one remaining of two in California that challenged the policy. Another unidentified guardsman who brought suit in federal court in San Francisco dropped his case after the military decided not to send him back to Iraq because he was suffering from post traumatic stress disorder, said Sondheimer, who worked on that case.
The Sacramento-based soldier in the pending case is an eight-year veteran who has fought in combat and is married with two children. He is assigned to the 2668th Transportation Company, a 170-member unit activated for 18 months. It is training at Fort Lewis, Wash., and will ship out to Iraq later this month.
The guardsman signed up under the National Guard "Try One" program for veterans, which offers military education and family medical benefits for a one-year trial. Before that term expired, he was called up for an 18-month tour that will extend his enlistment nearly a year beyond the April 30 expiration of the time he signed up for.
Court papers said the soldier's family faces financial hardship while he is deployed because they will lose the income from his civilian job.
The government must file an additional brief by Nov. 22 before the judge issues a written decision.
