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  • John Maher

Sergeant Retained, But Discharged for Same Conduct 10 Years Later, Misses Retirement

SUMMARY: Claiborne served one year for sexual assault of a minor he met drinking in a bowling alley bar. Despite that, he was retained in 2006, promoted twice, and sent to combat twice. Despite having an enlistment contract guaranteeing him 20 years retirement, he was discharged 5 months before retirement because the army initiated a new policy that went back 10 years. 

Damon Claiborne

Claiborne v. Secretary of the Army

This case is an appeal in the United States Court of Appeals for the Ninth Circuit in California. Claiborne was processed for administrative separation in 2005 for sexual misconduct, however, the Army retained him on active duty, promoted him twice, sent him to schools, deployed repeatedly to combat, and entrusted the lives of junior soldiers to him.

In his 19th year of service, having signed a contract for a 20-year retirement, the Army involuntarily separated him months shy of vesting in retirement, based on the very same 2005 issue that had been resolved.

Claiborne challenged the separation in the United States District Court for the District of Oregon. The District Judge ruled the the Secretary of the Army has the "plenary" authority to separate any enlisted personnel.

Claiborne's appeal challenges the District Judge's determination because the Court did not consider that Congress did not provide "retroactive" authority to go back ten years and resurrect a resolved issue. In other words, legislation or laws Congress passes have proactive effect, not retroactive effect.

Claiborne bases his appeal on the Constitution and Supreme Court precedent.

His lawsuit can be read here.

His reply brief can be read here.

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