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ROTC contract leaves no room for reinterpretation

Letter to the Editor | Monday, April 3, 2006

In response to William Sullivan’s March 31 letter (“Military contract not ambiguous”), I would like to clarify some facts surrounding the matter of Jonathan O’Reilly. Note that the opinions here are my own and do not represent those of any government organization.

The title given Sullivan’s letter by The Observer is a very fitting one for a rebuttal. Nothing in the clause quoted by Sullivan, “I will well and faithfully discharge the duties of the office upon which I am about to enter,” implies an indefinite term of service. ROTC cadets sign an Enlistment Contract (DD Form 4/1 and 4/2), a ROTC Scholarship Cadet Contract (DA Form 597-3), and ultimately an Oath of Office Military Personnel (DA Form 71). The term of service in DD Form 4/1 and 4/2 is stated clearly in Section B, Line 8. My own contract states “8 years.” I don’t know what O’Reilly’s contract says, but I’d bet my next paycheck it doesn’t say anything akin to “indefinite.” Nowhere in any of these documents is there any provision for the length of service to be involuntarily increased; it is noted only that an officer serving in the guard or reserves may be involuntarily called to active duty. As Sullivan rightly notes, officers and soldiers must obey the lawful orders of the Commander-in-Chief (and all other officers appointed above them) while they serve under the contract, but it is incoherent to assert that the President could unilaterally extend the contract under which he has the right to have his orders respected in the first place. If a person’s right to have his orders respected depends on the contract existing first, the terms of the contract itself cannot be subject to that person’s will.

Furthermore, there is no clause in the United States Constitution which grants to the President or any other official the privilege to involuntarily extend the agreed service of anyone, military or no, and the 13th Amendment can be reasonably construed specifically to prohibit this. This is not to equate involuntary servitude with slavery. It is clear from the text that the 13th Amendment does not necessarily consider the two synonymous, yet they are both equally proscribed. The authors of this Amendment were wise to invoke a more general principle in order to prohibit involuntary service at large, and not only traditional slavery. This certainly applies to the present case.

The ROTC contract does not imply indefinite service, and it could never do so. Such a contract could never be valid because a grievance with respect to it could never properly be adjudicated. For if one enters into a contract with indefinite obligations, how could one ever be determined to have fulfilled the obligations of the contract? The obligations could never be said to have been fulfilled even by the admission of the other party, because at a later date the other party could change its mind and reinvoke the contract. The aggrieved party would have no textual recourse to protest even in the face of a prior admission by the other party. Such a contract would attempt to give one party the right to determine unilaterally when the contract had been fulfilled, and by doing this it would lose the nature of a contract, i.e., it would be no contract at all. But the ROTC contract is a valid contract that does not attempt this usurpation. It lists clear, definite obligations for both parties. The student agrees to a certain term of service, and the government agrees to pay a certain amount for tuition, books and stipend. For one party to attempt to alter the contract unilaterally to increase the obligations of the other party is simply an invalid act. The military does, in fact, often attempt to keep personnel in service beyond their legal commitment and against their will. The fact that such attempts are often efficacious does not bear at all on the fact that they are always illegitimate. These are wrongs unfortunately sometimes suffered. The warnings Sullivan has received of the possibility he might be required to serve longer than his contract stipulates is a practical warning backed by force, not a contractual clause backed by law.

The military’s administrative requirement to have a resignation formally accepted is here in conflict with the citizen officer’s right to have the contract respected, and this seems to be the core of O’Reilly’s case. O’Reilly has served his agreed term of service. Cadet Sullivan’s bare assertion that “one of the obligations is to serve as long as one’s services are deemed necessary, not by the individual, but by the organization” is an opinion totally without legal, logical or moral support. His statement that “It is not anyone else’s responsibility to make sure the officer candidate understands his or her obligation to fulfill that office” completely ignores the fact that O’Reilly knows exactly what his contract says. It is the government that does not “understand” the obligations in this case – in reality, it likely understands the obligations perfectly, but chooses not to honor them. Sullivan’s deference to the government in fulfilling his duties as an officer is to be commended, but his deference to the government in a broader context of respecting rights is certainly not in the spirit of maintaining the protections fought for and ultimately codified for us by the founders of this nation.

Sullivan ends with the self-contradictory statement that “… I am not arguing that O’Reilly does not have a legitimate claim to be released from his oath, but his letter shows gross ignorance toward the actual commitment officers are expected to make …” If Sullivan himself recognizes O’Reilly’s claim as legitimate, how can he then simultaneously believe that O’Reilly is “ignorant” of what his commitment does and does not require? The only assumption that makes this statement internally coherent is if Sullivan takes for granted that citizens are morally required to forsake all broader principles of freedom in order to subject themselves blindly to the temporal will of the government, even outside of the context of obeying lawful orders under their oaths. This is an untenable moral position for a people who wish to remain free. Honoring personal freedom according to the principles and text in the Constitution and other written laws above the temporal desires or “needs” of the stewards of government is the crux of what it means to have a Republic as opposed to some other more sinister form of government. Ten years ago, I might have agreed with Sullivan. After several deployments and years of service, I hope Sullivan will eventually gain a more mature, balanced, and comprehensive understanding of what patriotism and rights entail in our Republic, as I have.

Captain Eliot M. HeldalumnusClass of 1997April 1