Constitutional Law

Top Oregon Court Asked to Rule: Must Soldier Choose Between Violating Army Order or Probation?

Correction: On probation for two misdemeanor sex offenses, a Oregon man who is a member of the Army Reserve is currently facing a tough choice:

Ordered by the U.S. Army to deploy to Afghanistan, Derrick James McDonald, 22, will be in serious trouble if he fails to do so. But if he leaves the area he will violate his probation in the Washington County case and could be arrested when he returns, the Oregonian reports.

Circuit Judge Gayle Nachtigal said at a hearing last month that the dilemma is of McDonald’s own making: “He has conditions that he should have met that he didn’t,” she stated. “I’m not inclined to say that’s OK. … Whether he chooses to deploy or not will be up to him.”

However, McDonald’s lawyer, Laura Graser, on Thursday asked the state supreme court for an emergency ruling allowing her client to deploy without violating his probation.

He was convicted, but not required to register as a sex offender three years ago, because he had a relationship with his 15-year-old girlfriend when he himself was 19, the newspaper says.

“A state court has no power to force a soldier to either violate state probation or to violate direct orders to deploy,” contends Graser in her Oregon Supreme Court filing. “Not only would this offend the basic structure of the United States Constitution, but a soldier, if he chooses to deploy, should not be required to go to a war zone with a preoccupation that he will face probation sanctions once he returns home.”

Updated on Sept. 14 to clarify that McDonald is currently 22 years old, and was 19 at the time he committed the offense.

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