Soldier to sue the military, fighting his fifth order to combat

After serving in Afghanistan and three times in Iraq, an Army Reserve sergeant from Port St. Lucie recoiled at still another deployment. BY AMY DRISCOLL adriscoll@MiamiHerald.com

CARL JUSTE / MIAMI HERALD STAFF Erik Botta is an Army Reservist who has done four combat tours in Iraq and Afghanistan. He is now being called for a fifth tour. Audio | Interview with Erik Botta Slide show | Called to duty

PORT ST. LUCIE -- Erik Botta believes he's done right by his country.

Days after 9/11, as a young Army reservist, he volunteered to go to war. He was soon in Afghanistan.

The next year, he was sent out again, this time to Iraq, part of a Special Operations team.

In the next two years, he was sent to Iraq again. And again.

He thought he was done. But now, the Army wants Sgt. Botta one more time.

The 26-year-old Port St. Lucie man has been ordered to report to Fort Jackson, S.C., on July 15 for his fifth deployment. And that has compelled Botta, a first-generation American who counts himself a quiet patriot, to do something he never thought he'd do: sue the Army.

''I'm proud of my service,'' he said. ``I never wanted it to end like this.''

Nearly seven years into his eight-year commitment to the reserves, the personal costs are higher for Botta. He could lose his home. His job at Sikorsky, working on the Black Hawk military helicopter, could be on the line. He's halfway to his electrical engineering degree, planning a career in defense work, but his professors say he'll suffer a significant setback if he is deployed. He doesn't mention the danger another deployment would bring, but his wife and parents do.

''I'm proud of being in the Army,'' he said. ``They taught me responsibility. They taught me maturity. And they gave me a good toolbox of technical skills to work with. I think I'd be more valuable to my country at this point by being here, getting my degree and working at Sikorsky.''

In a lawsuit he expects to file this week in federal court in Florida, Botta says he will ask for an exemption or delay so that he can complete his engineering studies. He will also ask the court to prevent the Army from requiring him to report for duty until the legal questions are settled.

His attorney, Mark Waple -- a West Point graduate and former military judge advocate who practices in Fayetteville, N.C. -- says Botta's case shows that the Army is inconsistent in its decisions when selecting reservists for involuntary mobilization, over and over.

''This is an arbitrary decision by the Army Human Resources Command with no rational basis,'' Waple said.

THE CONSEQUENCES

Deployment now would mean that he could no longer afford his house -- his wife would probably have to move in with her parents. Plans to start a family would be on hold. He would probably have to repeat some engineering courses after his return, and he might even lose the job he just landed about a month ago. Previously, he worked at Pratt & Whitney in the Joint Strike Fighter and Raptor engine programs.

''This is no peace protester,'' Waple said. ``I wouldn't have touched this case with a 10-foot pole if it was. He's put the boots on and been in combat.''

Although Botta knew there was a risk that he would be called to duty again, he assumed that it was very slight, given his four combat deployments, pursuit of an engineering degree and employment with military contractors, he said.

''The world pretty much stopped when I got the notice,'' said Botta, weighing each word. ``I've sacrificed a lot for the military. I didn't want to end with litigation, but I feel I've done my service to my country. I've done what I signed up for in more ways than one.''

The Army doesn't agree. It turned down one appeal, with another pending but unofficially denied. Last year, it granted Botta a 287-day delay, pushing his deployment date to this month, after an inquiry by U.S. Sen. Bill Nelson, D-Fla.

''This is something we're starting to see more of,'' Bryan Gulley, Nelson's spokesman, said about repeat deployments. ``It's one of the reasons Nelson has been saying we have to stop relying so heavily on the [National] Guard and the Reserve.''

Army spokeswoman Maj. Cheryl Phillips issued a statement Friday regarding Botta's case, saying in part that the Army evaluates ``each request independently to determine if the mobilization will cause undue hardship for the soldier or the family. We appreciate the sacrifice our citizen soldiers and their families make when called to active duty.''

The Army has granted 87 percent of delays requested by soldiers -- most are 90 days or less -- and 54 percent of exemptions, the statement said. It did not comment on Botta's case, but the Army said in a letter sent to him regarding one of his appeals that he did not ``meet the requirements for a hardship exemption/discharge.''

Botta joined the reserves in 2000 and asked to be activated in 2001 -- ''I felt like I had to do something'' after 9/11, he said -- and his tours of duty have lasted up to eight months. He left active duty at the end of 2004.

Under his current reporting date, he might not even complete the semester; classes end in August.

Attorney Waple says the Army has granted an exemption in at least one similar case, in 2005. A 24-year-old North Carolina enlisted Army reservist with two combat tours under his belt -- in Iraq and Kosovo -- was involuntarily mobilized while attending community college in Raleigh, pursuing a degree in chemical engineering.

He had completed five of his eight years in the service, Waple said. The man's first appeal was denied, but after Waple filed a second appeal, he was given an exemption and honorably discharged, Waple said.

Botta's case may be even stronger. He has completed more years of service and more combat tours, has a job in the defense industry while pursuing his engineering degree, and was granted a 287-day delay already, Waple noted.

Botta has tried hard to avoid a suit, Waple said, filing every appeal available within the Army's justice system. Botta and his wife have sent letters to everyone from Sen. Nelson to the White House. His professors and employers have sent letters, too, on his behalf.

''It's an awkward thing for any serviceman,'' Waple said. ``He has a very strong sense of responsibility and duty to serve.''

In his own letters to the Army, Botta notes that he is attending school on the GI Bill, maintaining a 3.9 grade-point average, and is grateful that he can use his Army skills in his work with military contractors.

''If I was to go back to the Army at this juncture in my life, I could very well lose my house and be in considerable debt for years to come,'' Botta wrote. ``I am proud of the fact that I can still continue to serve my country with the knowledge that I have acquired from the U.S. Army.''

The Army's response during the appeals, Botta said, has been ``minimal communication.''

Carlos Botta, his father, a naturalized U.S. citizen from Argentina, said he applauded his son's military service -- until now. ``He served in Afghanistan. He served three times in Iraq. The odds are getting slimmer and slimmer for him. He might get hurt. Don't you think he has served the country enough already?''

WIFE'S CONCERNS

Botta's wife, Jennifer, who married him between Iraq stints, said she can't face the idea of his returning to combat. Losing their house, painful as that would be, is the least of her worries.

''He's been over there four times. There's only so many times you can go over without something happening . . . .'' Her voice trailed off.

During his deployments, she said, she would watch television news reports about bombings and then count the hours until he called. ''My cellphone was in my hand 24 hours a day,'' she said. ``I never let it go.''

For Erik Botta, who keeps his hair military-short, the last few months have played out as a struggle between his battle-hardened loyalty to the Army and an abiding sense of what's right.

''We were in a wartime situation,'' he said. ``I did what they asked me to do. I went over and did it. And then when I was leaving, they told me I could leave. They told me to get on with my life, and I did. Now it seems they've changed their mind.''

But he doesn't regret his service -- at all. ``I'm proud to be in the Army, and I'm proud -- cheesy as it might sound -- I'm proud to be an American.''

References:

http://www.local6.com/news/13642869/detail.html
http://www.freerepublic.com/focus/f-news/1862658/posts