More Back Door Draft News: Reservist refuses to serve in Iraq, and wins


Reservist refuses to serve in Iraq, and wins

Updated: 2004-11-06 13:55

A U.S. Army Reserve captain who sued the government for trying to force him into service in Iraq after he resigned has won an honorable discharge, his lawyer said on Friday.

In a similar case in California, however, a federal judge declined to block the deployment to Iraq of an Army National Guardsman who said his duty time was wrongly extended under the military “stop-loss” policy.

The cases reflect a sensitive issue over how the United States maintains its force levels in Iraq, where an intense insurgency has forced Pentagon policy makers to seek ways to supply troops.

Jay Ferriola, 31, of New York, had filed suit in Manhattan federal court seeking to keep the Army from enforcing an order returning him to active duty. The case named Secretary of Defense Donald Rumsfeld among the defendants.

Ferriola’s lawyer, Barry Slotnick, who had called the Army’s order an illegal “back door” draft, said he dropped the suit on Friday after the Army gave his client an honorable discharge.

“We won. The case is over. He is a civilian,” Slotnick said.

“I’m very happy with the decision,” Ferriola told Reuters in a telephone interview. “Now I’m going to carry on with my life as a civilian.”

The Army Reserve was not immediately available for comment.

The suit charged that the Army’s deployment order, dated Oct. 8, violated Ferriola’s constitutional rights against “involuntary servitude” and breached his military contract.

Ferriola, who had enlisted in the U.S. Army Reserve in exchange for a scholarship at the Virginia Military Institute, completed his eight years of service with the Army in February of this year, and resigned from the Reserve in June.

He had entered the reserve in February 2000 after serving in the regular Army. Three years later he was ordered back to active duty and prepared to serve in Iraq, but his unit was never sent and he was released to the Reserve in June 2003.

Although his commanding officer recommended the resignation be approved, the suit said Ferriola never received an official response.

A lawyer involved in the case said it was not clear whether Ferriola’s order this year to go to Iraq was part of the military’s “stop-loss” policy. The stop-loss orders prevent tens of thousands of soldiers designated to serve in Iraq and Afghanistan from leaving the military if their volunteer commitments end during their deployment.

Slotnick said the case would set a precedent. “Those that are called to serve improperly have a remedy and will be able to go to a federal court to be relieved of an onerous and improper request,” he said.

In the California case, a National Guardsman listed in court documents as John Doe had filed a lawsuit last month challenging the stop-loss policy.

The military has extended the man’s time in arms and is to send him to Iraq in two weeks. The federal judge in Sacramento on Friday denied Doe’s request for a preliminary injunction to block the deployment.

The judge said Doe’s challenge appeared premature because his original period of enlistment was not due to expire until April 30, 2005. Doe has been assigned to a 545-day Iraq tour that would extend his total time under arms by nearly a year.

Doe’s attorney, Michael Sorgen, said he would appeal the judge’s ruling because the soldier is due to be shipped out soon. The judge is due to hear the merits of the suit later this month.

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