Soldiers sue over extended enlistments- Any realistic chance of them winning?

[astro]

@Reeder

Be aware it is a pdf file.

http://www.dior.whs.mil/forms/DD0004.pdf

Section 9 is where the pertnant things are.

It’s pretty all encompassing.

9. FOR ALL ENLISTEES OR REENLISTEES: Many laws,regulations, and military customs will govern my conduct and require me to do things a civilian does not have to do. The following statements are not promises or
   guarantees of any kind. They explain some of the present laws affecting the Armed Forces which I cannot change but which Congress can change at any time.

a. My enlistment is more than an employment agreement. As a member of the Armed Forces of the United States, I will be:

(1) Required to obey all lawful orders and perform all assigned duties.

(2) Subject to separation during or at the end of my enlistment. If my behavior fails to meet acceptable military standards, I may be discharged and given a
certificate for less than honorable service, which may hurt my future job opportunities and my claim for veteran’s benefits.

(3) Subject to the military justice system, which means, among other things, that I may be tried by military courts-martial.

(4) Required upon order to serve in combat or other hazardous situations.

(5) Entitled to receive pay, allowances, and other benefits as provided by law and regulation.
b. Laws and regulataions 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.
c. 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.

10. MILITARY SERVICE OBLIGATION FOR ALL MEMBERS OF THE ACTIVE AND RESERVE COMPONENTS, INCLUDING THE NATIONAL GUARD.

a. FOR ALL ENLISTEES: 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.
b. If I am a member of a Reserve Component of an Armed Force at the beginning of a period of war or national emergency declared by Congress, or if I become
a member during that period, my military service may be extended without my consent until six (6) months after the end of that period of war.
c. As a member of a Reserve Component, in time of war or national emergency declared by the Congress, I may be required to serve on active duty (other than for training) for the entire period of the war or emergency and for six (6) months after its end.
d. As a member of the Ready Reserve I may be required to perform active duty or active duty for training without my consent (other than as provided in item 8 of this document) as follows:

(1) in time of national emergency declared by the
President of the United States, I may be ordered to active duty (other than for training) for not more than 24 consecutive months.

(2) I may be ordered to active duty for 24 months, and my enlistment may be extended so I can complete 24 months of active duty, if:
(a) I am not assigned to, or participating satisfactorily in, a unit of the Ready Reserve; and
(b) I have not met my Reserve obligation; and
(c) I have not served on active duty for a total of
24 months.

(3) I may be ordered to perform additional active duty training for not more than 45 days if I have not fulfilled my military service obligation and fail in any year to perform the required training duty satisfactorily. If the failure occurs during the last year of my required membership in the Ready Reserve, my enlistment may be extended until I perform that additional duty, but not for more than six months.

(4) When determined by the President that it is necessary to support any operational mission, I may be ordered to active duty as prescribed by law, if I am a
member of the Selected Reserve.

[SuaSponte]

@David Simmons

And I’ll bet the sneaky bastards merely say in the enlistment disclosure that service shall be such and such and also be in accord with the Selective Service Act of 1948, the Uniform Military and Training and Service Act of 1951 and all applicable Executive Orders.

And what enlistee, of any age, is going to look up the references and any legal precedents concerning them?

But it wouldn’t matter. If the Prez doesn’t have the authority to issue the Executive Order in question without a declaration by Congress, said E.O. is invalid and wouldn’t be applicable.

As it happens, this morning it was reported on NPR that a federal court denied a request for a temporary restraining order preventing the army from shipping one stop/loss guy back to Iraq. That is not dispositive - a TRO is a very preliminary ruling - but it certainly doesn’t help the case of the stop/loss and IRR soldiers.

Sua

[Mr.Slant]

@Loopydude

I have a cousin who is a Navy recruiter. We didn’t get into the specifics, but I asked him about the stop-loss policy months ago, and how upset some people seem to be about it. “Well, they didn’t read the fine print,” was his terse reply. He only elaborated to say, “If they want to keep you, they’ll keep you. They’ll call up the discharged if they have to. There isn’t a damn thing these folks can do about it, because that’s what they signed up for, whether they were aware of it or not.” I’m guessing these guys, at best, have highly questionable recourse, and in all probability, do not have any. My cousin knows all the ins-and-outs regarding this stuff, and he dismissed objections to stop-loss out-of-hand. There must be some overpowering CYA language built into these contracts that can be summed up as “Extenuating circumstances give us the right to do whatever we please with you once you sign the papers.”

I wonder if your recruiter would notice if you surreptitiously crossed out the CYA language when you signed it. That could be a hilarious court case.

[Loopydude]

Well, he’s not my recruiter, he’s my cousin, but that would be interesting, to say the least. At any rate, my statement is conjecture based on my confidence in his judgement, which I can’t deny may be unfounded in this case. He’s been in the Navy for about 15 years though, first serving on a chase sub in various capacities, then transferring to where he is now. His brother/my other cousin also served in the Navy, as a reactor tech on a “boomer”, but got an honorable discharge almost ten years ago. They were both at this gathering where I brought up the subject, and the elder, discharged cousin seemed as surprised as myself at the plight of some of these stop-lossed soldiers. After hearing his younger brother dismiss their predicament as unavoidable, plus the other things I mentioned, he did not dispute; he shuddered and said “shit, I hope they don’t come after me.” I took what was said to mean, in all likelyhood, that the Military knows it has the legal right, despite the soldiers’ objections.

[David_Simmons]

@SuaSponte

But it wouldn’t matter. If the Prez doesn’t have the authority to issue the Executive Order in question without a declaration by Congress, said E.O. is invalid and wouldn’t be applicable.

Sua

Of course. If the EO were improperly promulgated it wouldn’t be applicable. But the President was authorized by Congress to to use the Armed forces as he saw fit:

“(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to …”

secure the US from danger from Iraq and to enforce UN resolutions.

It seems to me that the President, as Commander in Chief is authorized to use the Armed Forces and in order to do so he must have some Armed Forces to use. It seems to me that gives him pretty good grounds for EO’s to keep those people who are needed in past their nominal completion of duty date.

But I guess we’ll see, won’t we?

[David_Simmons]

Would a Court interpretation of Congress’ action in a way so as to give the President some leeway come under the heading of “judicial activism?”