Army Using Policy to Deny Reserve Officer Resignations

By Ann Scott Tyson
Washington Post Staff Writer
Thursday, May 11, 2006; A03

The Army Reserve, taxed by recruiting shortfalls and war-zone duty, has adopted a policy barring officers from leaving the service if their field is undermanned or they have not been deployed to Iraq, to Afghanistan or for homeland defense missions.

The reserve has used the unpublicized policy, first adopted in 2004 and strengthened in a May 2005 memo signed by Lt. Gen. James R. Helmly, its commander, to disapprove the resignations of at least 400 reserve officers, according to Army figures.

"I don't think during a time of war you would want to let people go when you have a shortage of people," Army Reserve spokesman Steve Stromvall said when asked to comment on the memo, which surfaced during litigation over the policy. At least 10 reserve officers have sued the Army, saying they should be allowed to get out because they have finished their mandatory eight years of service.

Blocking reserve officers' resignations is one of several steps the Army has undertaken in recent years to keep soldiers beyond their original terms of service, as today's wars place unprecedented demands on the all-volunteer force. Under another practice, known as "stop-loss," thousands of active-duty Army and reserve soldiers have been temporarily prevented from leaving the military, either because their skills were needed or because their units were going overseas. As of January, more than 13,000 soldiers were being kept in the service under stop-loss, a policy criticized by some as a "backdoor draft," which the Army says it seeks to end.

But experts in military law say barring reserve officers from resigning is in some ways more expansive and open-ended than stop-loss. The policy applies to officers who do not fall under stop-loss.

At the heart of the controversy is whether a law stating that commissioned reserve officers are appointed "for an indefinite term and are held during the pleasure of the President" gives the government the power to force them to serve permanently -- as Army lawyers say -- or only to discharge them against their will.

"This is a dangerous precedent for the future of all officers. They are saying officer service is permanent," said Capt. Bradley Schwan, who served six years on active duty before joining the Army Reserve. He is suing Defense Department leaders to be allowed to resign, after being turned down twice. He is awaiting a ruling on a government motion to dismiss his case by a judge in U.S. District Court in Los Angeles.

"What the Army is saying is even though you are promised up front eight years as a reserve officer, they are saying they can keep you as long as they desire," said Stuart Slotnick, a lawyer involved in Schwan's case and four similar cases since 2004. Another pending case involves Capt. Jonathan O'Reilly, who has tried to resign five times in two years but was required to report to Fort Hood, Tex., on Monday to prepare to go to Iraq, said his attorney, Donald G. Rehkopf Jr.

But Defense Department lawyers say that the federal law, including its use of the phrase "indefinite term," clearly gives the administration the authority to disapprove officer resignations. "The term 'indefinite' means what it says," they said in a filing in the Schwan case. "An indefinite term has no specific length, but is rather unlimited."

In addition, Army regulations have included broad language for several decades that could be used to restrict a reserve officer's ability to leave the service, including a 1987 rule that resignations may be accepted except during a national emergency proclaimed by the president or "other conditions which may necessitate such action."

The recent memos disclosed in the litigation were attempts to get more specific about what those conditions were, reserve officials said.

"The Army Reserve told me it's based on the needs of the Army," said retired Maj. Gen. David Bockel, deputy executive director of the Reserve Officers Association, a professional association that represents 75,000 officers from all services. "If the Army needs you, you can't resign," said Bockel, who has received calls from officers whose resignations were rejected.

The indefinite forced service has come amid a surge of call-ups for the reserve, which has mobilized more than 140,000 soldiers since 2001 for conflicts in Iraq and Afghanistan and for homeland defense. Army Reserve units, known as the Selected Reserve, have a total of about 188,000 soldiers, including 34,000 officers.

Meanwhile, the Army Reserve is falling short of recruits, making only 84 percent of its recruiting goal in fiscal 2005, and 95 percent so far this fiscal year.

Helmly cited the heavy operational demands combined with officer shortages as the main reasons for setting down new guidelines to curtail resignations, a move that led the Army Reserve to turn down 176 resignation requests in 2004, 190 in 2005 and 34 so far this year, the Army said.

The May 2005 memo states that to be allowed to resign, a reserve officer must first either serve a term supporting military operations in Iraq, in Afghanistan or for homeland defense; be assigned to a job specialty that has at least 80 percent of its personnel; or suffer a recent family death or financial trouble that would lead to serious, permanent hardship unless the resignation is granted.

"The reason you don't want to discharge people when you have a critical shortage is twofold: The first is readiness, and the second is fiscal. If you need them now and let them go, then you have to train someone to replace them, and that's expensive," Stromvall said.

Not all Army Reserve officers fall under this policy. Those affected by it belong to the 167,000-strong force of "drilling reservists" assigned to units that train on weekends. Another category is the Individual Ready Reserve, made up of 110,000 soldiers who are not assigned to units and who are given the opportunity to resign after they complete eight years of service unless they are mobilized before then.