- The Washington Times - Tuesday, January 18, 2005

The Army has reversed course and decided to let an Army physician resign, after first demanding that he stay in the reserves as part of a “stop-loss” wartime policy.

Army Reserve Maj. Todd P. Ginestra, a plastic surgeon in Paducah, Ky., had been notified that he must return to active duty, after serving six months in the Persian Gulf and after his eight-year commitment expired last June.

The Army wrote Maj. Ginestra on Sept. 13, saying current stop-loss policies prevented him from resigning his commission. The Army has relied on a series of stop-loss policies to shore up depleted ranks by holding thousands of soldiers on active duty, even though their service obligation expired.

In this case, Maj. Ginestra fought the order. In December, he was told by his unit’s commander that they were being reactivated and that the physician would be recalled to active duty.

One of his attorneys, Charles Gittins, challenged the recall in a December 7 letter to Army headquarters in Washington. He later filed suit in federal court, arguing that the doctor’s speciality was not covered by the series of stop-loss orders issued by the Army since the war on terror began.

The challenge worked. Mr. Gittins said the U.S. Justice Department earlier this month notified Maj. Ginestra that he would not be forced to go back on active duty and would be discharged honorably.

The Army yesterday issued a statement to The Washington Times that said:

“The Army re-evaluated Maj. Ginestra’s resignation and approved his resignation on January 7, 2005, five days before he filed his lawsuit. We honor his service to his country and wish him well. Regarding the stop-loss policy, a soldier’s job specialty is immaterial to the policy. No one [military occupation specialty] or specialty would stand apart from the unit stop-loss policy.”

Mr. Gittins said he thinks that there are physicians being kept on active duty illegally.

“The Army has to follow its own regulations,” Mr. Gittins said. “The Army doesn’t have enough people. The Army didn’t plan for this war, and they are trying to manipulate those who have already served into staying longer.”

The Ginestra case, he said, “would be something to cite for anybody who the Army is using stop-loss to preclude from resigning.

“The Army is using every artifice they can to keep people from getting out. They are having trouble recruiting and retaining people in the Guard and Reserve, especially doctors.”

The Army called Maj. Ginestra to active duty in January 2003 in preparation for the invasion of Iraq. He was released six months later and submitted his resignation letter last June.

He is now maintaining a practice in Paducah and repaying a $139,000 line of credit.

“If Dr. Ginestra is activated, he will suffer severe economic hardship, not only from the loss of income, but also because of his existing line of credit that services his practice and his need to continue paying his employees while he is away,” said the lawsuit filed in U.S. District Court.

“These damages are not recoverable at law. Accordingly, if Dr. Ginestra is ordered to report for active-duty service in violation of the regulations that prescribe that his resignation should be accepted, he will suffer irreparable harm for which there is no adequate remedy at law.”

Said Mr. Gittins, “He has served. He has been over there. It’s not like he’s trying to avoid service. He’s been there, done that. He’s trying to move on with his life.”

The Army has issued at least 12 stop-loss orders, or modifications, since January 2002. Generally, the orders were aimed at keeping certain skilled soldiers on active duty or keeping them in Iraq or Afghanistan until their units redeployed, even though their enlistment obligation had expired.

Mr. Gittins argued that none of the orders singled out Maj. Ginestra’s general surgeon specialty.

“The denial of Maj. Ginestra’s resignation did not comply with governing Army policy or regulations and the decision to deny the resignation must be reversed,” Mr. Gittins said in his December 7 letter to Army headquarters.

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