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GUARDSMEN MAY GET BACK PAY FOR COURSES LAWSUIT COULD BRING HUNDREDS OF MILLIONS FOR ELIGIBLE SOLDIERS

Apr 22, 2004

By GARY McELROY
Staff Reporter

Hundreds of thousands of National Guardsmen soon could be receiving back pay for time they spent taking correspondence courses prescribed by the federal government, thanks to a suit brought by a guardsman in Baldwin County.

If things go the way a group of Mobile and Washington lawyers expects, compensation due to eligible guardsmen could amount to hundreds of millions of dollars.

Mobile attorney Richard Dorman and his firm, Cunningham, Bounds, Yance, Crowder and Brown, along with two Washington firms, is handling the class-action suit against the government.

Dorman said there are nearly 450,000 National Guardsmen, many of whom could be owed for the personal time they've spent studying through correspondence courses.

The case began three years ago, brought by William Clark, a 57-year-old Baldwin County man who has served in the Alabama National Guard since 1987 and, before that, a stint in the regular U.S. Army.

National Guard members who aspire to higher rank by taking courses for merit, and those who must keep up with prescribed courses to maintain rank or avoid demotion, had long been expected to take such classes on their own, without compensation.

The U.S. Court of Appeals for the Federal Circuit ruled late last year that National Guard members are, indeed, entitled to compensation for time spent completing mandatory courses. And the appeals court recently denied the government's petition for a rehearing of the decision.

What's left is a determination of just how much compensation is required, which will be decided by the Court of Federal Claims in Washington, D.C., in the coming months.

According to his attorneys, Clark expended between $2,500 and $3,000 over the years in pursuit of the courses. He is expected to receive at least that amount in compensation from the government.

Clark, a National Guard musician, said he has taken more than 20 mandated correspondence courses, ranging from those dealing with his music specialty within the Guard to instruction on security measures involved in fields of conflict, such as Iraq.

The 20-plus courses, Clark said, represent more than 150 hours of work. Some courses involved 12-hour training periods, some three or four, others eight.

"We were expected to do those on civilian time, without pay," Clark said.

A staff sergeant, or E-6, Clark said that a few years ago he was demoted to an E-5 for not completing required courses at a time when he was unable to do so because of other obligations. At the time, he was in line for promotion to E-7, and he hoped to retire from the Guard at that rank.

He was obliged to go back and complete courses he already had taken, just to get back to his present E-6 status, he said, "but I was too close to retirement to make (the grade of E-7). It basically scuttled my military career.

"What we are essentially doing is holding them accountable for violating the 13th Amendment, involuntary servitude," Clark said of his suit against the government. "The last time I checked, slavery was outlawed in 1865."

He said members of regular U.S. military units and full-time personnel are compensated for the correspondence courses. Denial of the same opportunity to guardsmen was "an economizing factor" on the government's part, Clark said.

Courses are often available only through correspondence, the complaint argues, and "can require a substantial amount of a Guard member's time."

In the wake of the court's ruling against them, lawyers for the Department of Defense continued to argue that Clark would be eligible for compensation for the courses only if he took them while on active duty.

Dorman called the Department of Defense's arguments "weird ... the federal government is requiring them to take these courses."

He said he expected that the appeals court will allow the plaintiff's side to form a class action, in part to help protect individuals who might face repercussions.

"The retaliation issue is something serious and something that happens," Dorman said. "It's a fact of life in the military. If you buck the system, you will be punished."

He said he was confident about winning a go-ahead for class action. As for compensation, he said, it's a matter of working out a just formula.

The Defense Department also had argued that Clark's enlistment in the Guard makes him "a member of the (state) reserve unit" and "is therefore excluded from receiving compensation for any correspondence courses."

On the contrary, the appeals court noted that the U.S. Supreme Court ruled in a Minnesota case that "since 1933, all persons who have enlisted in the state National Guard unit have simultaneously enlisted in the National Guard of the United States."

The government also argued that the Secretary of the Army is required to prescribe payment for equivalent training before compensation can be mandated. In Clark's case, the secretary did not prescribe payment "for time spent taking the required correspondence courses and ... therefore, Mr. Clark should not be compensated."

"We do not agree," the appeals court wrote. Rules require payment "for equivalent training that the Secretary prescribes. It does not require that the Secretary prescribe payment."

Clark's case has found support from members of both the U.S. House of Representatives and the Senate.

In a letter to Attorney General John Ashcroft, members of the Senate National Guard Caucus urged that the Department of Justice "act promptly to implement the Federal Circuit's definitive ruling that there is an obligation to pay National Guard members for correspondence course work taken as part of their military training.

"All across the globe, citizen soldiers in the National Guard are answering the call to duty in support of the Global War on Terror," senators wrote Ashcroft. "Given the increasing demands that have been put upon National Guard members, the Senate National Guard Caucus recognizes that the government should honor its statutory commitments to individual Guard members and otherwise do all it can to support the National Guard and their constitutional mission."

The letter to Ashcroft is signed by such senators as Tom Daschle, D-South Dakota; Patrick Leahy, D-Vermont; Richard Shelby, R-Tuscaloosa; Fritz Hollings, D-South Carolina; John Breaux, D-Louisiana; Orrin Hatch, R-Utah; and others.

"We do not want to send the wrong message to these citizen soldiers and their families while they are playing such a vital role, at great personal sacrifice, in serving the needs of our country," they wrote.

Secretary of Defense Donald Rumsfeld received a similar letter from House Assistant Majority Whip Joe Wilson, R-South Carolina, also urging support in obtaining the compensation for Guardsmen.

"The events of September 11 have unquestionably propelled homeland security to the top of the national agenda, and the National Guard, the country's part-time citizen soldiers, are playing a vital role in national security efforts here and abroad," Wilson said in his letter to Rumsfeld.

In its ruling, the appeals court said that what is left for Clark now is to "establish which classes the Secretary of Army required, if any, and which classes he took to satisfy those requirements" and then "establish the amount of compensation he is due."

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