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The Honolulu Advertiser

Posted on: Saturday, November 6, 2004

Kaua'i man sues over recall to active duty

By Ken Kobayashi
Advertiser Courts Writer

David M. Miyasato enlisted in the U.S. Army Reserve in 1987, served three years of active duty during the first Gulf War and received an honorable discharge in 1991. He remained on inactive status for five more years, until 1996. Since then, the Kaua'i resident has married, started an auto window tinting business and this year, he and his wife had their first child.

David Miyasato is suing the Secretary of the Army for recalling him to active duty. He had been told to report to a South Carolina facility.

Richard Ambo • The Honolulu Advertiser

But in September, Miyasato received a letter from the Army recalling him to active duty and directing him to report to a military facility in South Carolina on Tuesday.

"I was shocked," Miyasato said yesterday. "I never expected to see something like that after being out of the service for 13 years."

Miyasato is now suing the Secretary of the Army, asking a court to prevent the Army from ordering him to active duty. He is also asking for a court judgment declaring that he fulfilled all his obligations to the military.

Miyasato's lawyer, Eric Seitz, said Miyasato earlier asked for an exemption, but never got a response.

But after the lawsuit was filed, Seitz said they received a faxed letter from the Army's Human Resources Command saying Miyasato's request for an exemption from active duty has not been finalized. It said his Tuesday report date has been delayed for up to 30 days, but warned new orders "reflecting your new report date" will be mailed and that he must comply with them or risk being declared Absent Without Leave or a deserter.

Assistant U.S. Attorney Harry Yee said the office will defend the Army, but did not have any comment at this time.

Seitz said he doesn't know of another case in which a Hawai'i resident has been recalled after having been released from the reserves.

The Army announced last year that it would be involuntarily activating an estimated 5,600 soldiers to serve in Iraq, Afghanistan and elsewhere. Army officials would be tapping members of the "Individual Ready Reserves," military members who have been discharged from the Army, Army Reserve or the Army National Guard, but still have contractual obligations to the military.

Miyasato, however, long ago fulfilled his military obligations, Seitz said.

"My belief is that the Army is hard-pressed to recruit enough troops to send to Iraq and they're activating reserves as means to avoid implementing the draft," he said. "I think problems will increase as more and more people are resistant to participating in the war."

Miyasato, 34, said he's not contesting his active duty because of any strong feelings about the fighting in Iraq.

Miyasato served as a specialist E-4, driving a heavy equipment mobility tactical truck capable of hauling heavy loads over rough terrain. He delivered fuel, ammunition and other materials and served in Iraq, Saudi Arabia and Kuwait, he said.

"I'm proud of it. I have no regrets," he said. "I'd do it all over again."

He said he would have gladly returned to active duty when he was on inactive status, but that ended in 1996 and his life has changed, particularly with their 7-month-old daughter and his business, which can't survive without him.

He and his family would suffer "serious and irreparable harm" if he must show up for duty, his lawsuit said.

"I fulfilled my contract," he said. "I just want to move on from this, and I'm optimistic that I'll be successful."

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.