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Soldiers' advocates take to court to fight Carson ban 

Suiting up

By now, it's no secret that the Army discharges soldiers for relatively minor infractions — DUI and drug use, for example — that might stem from symptoms of war injuries, such as post-traumatic stress disorder. The discharges leave soldiers without medical benefits and treatment and allow the military to eliminate costs that could span a lifetime.

It's also been widely reported that when someone cries foul on that practice, they suffer retaliation.

Now, soldiers' advocates Robert Alvarez and Georg-Andreas Pogany, who were banned from Fort Carson in what they allege is blowback for their advocacy, have filed a lawsuit against five officers charging that the ban violates their constitutional rights to free speech, due process and access to courts.

Filed May 12 in U.S. District Court in Denver, the suit names as defendants Garrison Commander Col. David Grosso; his replacement, Col. Joel Hamilton, who takes command in a ceremony scheduled for this morning; command paralegal for the 4th Infantry Division Sgt. Major Mark Cook; post commander legal adviser Col. John Irgens; and Lt. Gen. Joseph Anderson, commander of the 4th ID and Fort Carson from November 2011 to March 2013.

A spokesman for Anderson says via email, "Lawsuits brought against the U.S. Army and the U.S. government are reviewed and potentially acted upon by the Army Litigation Division and the U.S. Department of Justice. It would be inappropriate to comment further on this subject."

None of the others responded to requests for comment. A statement from the post said simply, "Fort Carson will not discuss pending litigation."

The lawsuit faces legal hurdles, because it's so unusual for outsiders like Alvarez and Pogany to sue military officers, says their attorney, Maren Chaloupka: "We acknowledge there doesn't seem to be a precedent — good or bad — for the very unique issues that are presented here."

'Disruptive' presence

The practice of discharging wounded soldiers for misconduct started making headlines as early as 2006, the year Michael de Yoanna began reporting on the topic for the Independent ("Pattern of misconduct," cover story, July 13, 2006), and Daniel Zwerdling for NPR. In ensuing years, stories would emerge in the Denver Post, Stars and Stripes and USA Today, as well as PBS' Frontline. Last month, the Gazette won the Pulitzer Prize for national reporting for its 2013 series on the issue.

Numerous reports cited some of the hundreds of soldiers whom Alvarez and Pogany have helped navigate military procedure and secure medical evaluations and treatment. The two say they accept no pay for their work.

In 2008, Alvarez says, they detected the discharge pattern, and in 2010 began raising questions with post officials. In 2012, Alvarez says, a Carson Trial Defense Services official asked them to investigate, because military courts were being flooded with such cases.

In the midst of that investigation, they received a Nov. 5, 2012, letter from Col. Grosso. "I have determined that your presence is disruptive to the good order and discipline of the Fort Carson installation," he wrote. "You are hereby ordered not to reenter or be found within the limits of Fort Carson, Colorado."

Pogany, a former Army special forces soldier, and Alvarez, a Marine Corps veteran, say they've never been disruptive. "The history here is they crush whistle-blowers," Pogany says in an interview. "We were the ones who caught them doing what they do."

Alvarez adds, "I think clearly we were getting closer and closer to identifying the players and senior leaders that were involved in covering up what they were doing to discharge these solders, up to and including Gen. [Joseph] Anderson."

The lawsuit alleges the ban severely restricts their ability to help soldiers, because it prevents them from meeting with soldiers' attorneys, caregivers and commanders on post, and keeps them out of the post's courtroom. Alvarez and Pogany have sought help from congressional offices, the U.S. Surgeon General's Office and others; the lawsuit is a last resort, they say.

Rare case

Eugene Fidell, who teaches military justice at Yale Law School, says commanders control access, which is a privilege, not a right. "Debarment is typically ordered where a person has made him- or herself a nuisance in one way or another," such as by passing bad checks at the exchange, reckless or drunk driving, or disorderly conduct, he notes via email.

But Fidell also says soldiers' right to have evidence presented in court — where Alvarez and Pogany might testify or attend hearings on their behalf — would "trump" a commander's authority to ban a civilian. "If the commander stands his or her ground," he continues, "there could be contempt proceedings or the military judge could just move the case to a civilian courtroom."

Army regulations state that a commander's authority doesn't allow him to bar a person if the action infringes on that person's constitutional rights.

It's unclear how many people have been banned from Carson, and why, over the years. The post has provided no records in response to the Independent's Freedom of Information Act request submitted in September.

Mikey Weinstein leads the Military Religious Freedom Foundation, which won a settlement in a lawsuit against the Air Force Academy superintendent on behalf of a former employee. Such cases are difficult, he says, because a plaintiff must first exhaust all administrative remedies, and have "standing," by being a service member or civilian employed at the installation. Alvarez and Pogany aren't employed at Fort Carson in any capacity.

"We look forward to the court's analysis of these issues," Chaloupka says. "Everything in the complaint we expect to support if we're allowed to more forward."

zubeck@csindy.com

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