A question about the military and "stop loss"

When you join the military you sign a contract for the amount of time you choose to serve. So, I would think, does the military.

So if they hold you past the time you contracted for, aren’t they violating that contract?

This was explained to me when my enlistment was up but Clinton invoked stop-loss.

It doesn’t matter if they are violating the contract. It’s kind of grey whether the enlistment contract authorizes them to do this. What gives them the right, though, is that Congress authorized stop-loss measures during the Viet Nam war, even though it wasn’t used until Desert Storm.

Congress approved it has not been ruled unconstitutional. And a law isn’t really unconstitutional until the judge says it is. Kind of like it ain’t a foul if the ref didn’t call it.

It sucks, and military members are hampered by not being able to sue the government in most cases.

And it’s not like you can say no. Servicemembers must follow all lawful orders. If a servicemember believes the order is unlawful, they may refuse it. If there is a disagreement about an order’s legality, a court martial may decide it. In this case, the military believes the order is lawful, so simply leaving is desertion. And dereliction of duty. And missing formation. And several other crimes.

Long winded answer, but I still seethe when I think of what stop-loss almost cost me. I got lucky. Many didn’t.

Short answer is they can do it no matter what the contract says because Congress said they could, the President invoked the order and the Supreme Court won’t rule it unconstitutional.

When all three legs of the checks and balances tripod are out to screw you, there ain’t much you can do.

Thanks for your response. That really sucks.

I’m glad yours turned out well.

The actual contract makes it clear (PDF):


The minimum requirement to the military is eight years. Even if you join up as something simple for two years, you’re still committed to eight, during which you can always be recalled at the convenience of the military. The following six years you are still strictly in the inactive reserves; I thinks it’s “IRR” or “Individual Ready Reserve.”

It used to be six years. If you pulled two active, you pulled four active reserve. If you pulled three active you pulled three inactive reserve.

You don’t get your discharge until the end of your obligation.

Stop-loss was invoked on me at 9.5 years of service. My 8 year requirement was fulfilled, no reserve status for me. And no declared war. And no declared federal emergency. That’s where the grey area comes in. I didn’t fit the factors in the contract and yet I, and many like me, were subjected to stop-loss and forced servitude. People with twenty years in have been subjected to stop-loss.

Forced servitude may sound harsh, but that is what stop-loss is. I loved my time in the Air Force, and I still love the military, but let’s not pretend stop-loss is anything but what it is. The only reason it is not illegal is because the courts haven’t called it illegal.

Has anyone ever tested it in the courts?

Apparently not. Googling turns up nothing about legal challenges to stop-loss. Except for stop-loss being used as a scenario to overturn don-t ask, don’t tell and legalize homosexuality in the military.

I can’t imagine a court case succeeding. The law is very clear (I use the provision for the Ready Reserve because I found it first:) 10 USC 12302:

“In time of national emergency declared by the President after January 1, 1953, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons concerned, order any unit, and any member not assigned to a unit organized to serve as a unit, in the Ready Reserve under the jurisdiction of that Secretary to active duty (other than for training) for not more than 24 consecutive months.”

and when you take that with the disclaimer on page two of the enlistment document linked to by yoyodyne:

“b. Laws and regulations that govern military personnel may change without notice to me. Such changes may affect my status, pay, allowances, benefits, and responsibilities as a member of the Armed Forces REGARDLESS of the provisions of this enlistment/reenlistment document.” (Bolding in original)

What case could one possibly have that the government isn’t following its promises, when the person enlisting is clearly told that the government is not bound by the agreement in the same way that the individual is?

At 9.5 years, I was not subject to the ready reserves. Those that have been in 19+ years are certainly not subject to it, so your USC cite does not apply to them. Or me. That’s the problem. This applies to people that still have reserve commitment left. Many servicemembers affected by stop-loss do not.

They haven’t changed the law. I understand your point, but Congress didn’t change the laws after I enlisted. They just applied a law to me that shouldn’t have applied.

The government is not following it’s agreement. They wrote the laws. They have not changed the laws and expanded the IRR commitment. They are applying the laws to people not part of the IRR.

Your cites merely underscore the point that stop-loss is only legal because no one has challenged it in court and won the judgement. Just because it is legal doesn’t make it right. Stop-loss is wrong. Stop-loss is being applied to people to whom it should not apply.

There is, I think, a difference between officers and enlisted in terms of the legal aspects of stop-loss.

Officers serve “at the pleasure of the president” and it is commonly accepted that their service can be extended. Officer ID cards, to illustrate the point, do not have expiration dates. IIRC, to get out, officers submit a request to resign their commission, which need not be accepted, but almost always is.

Enlisted contracts are more like, well, contracts – valid for a specific period of time, and I think have a lot more room to complain about stop loss.