By Leo Shane III, Stars and Stripes, November 22, 2006

WASHINGTON — Lawyers for Spc. Agustin Aguayo on Tuesday asked a federal appeals panel to overturn both the Army’s decision to deny the medic conscientious objector status and a court ruling earlier this year backing the Army’s finding.

Attorney Peter Goldberger said the Army failed to present a clear argument why his client — a 1st Battalion, 18th Infantry Regiment soldier — didn’t qualify for a discharge from the service on a basis of his beliefs, and that it must be held accountable by the civilian courts.

Lawyers for the Army told the appeals court that the reasons were made clear: Aguayo’s anti-war stance was not based on religious tenets or long-held personal beliefs, but instead on a sudden desire not to return to Iraq.

Aguayo, 34, did not attend the hearing in U.S. Court of Appeals for the District of Columbia in Washington, D.C. He is currently in a military confinement facility in Mannheim, Germany, on charges related to refusing to deploy with his unit in September.

Supporters said Aguayo expected to be jailed for refusing to go to Iraq when he turned himself in to military authorities in Germany two months ago, but instead commanders there said they would simply force him to deploy.

He fled as military police escorted him back to his living quarters to get his gear ready for transport. Aguayo turned himself in to Army authorities in California several weeks later.

The three-judge appeals panel is weighing a number of options on how to handle Aguayo. If it upholds the lower court’s affirmation of the Army’s decisions, the medic could face up to seven years of prison on desertion charges.

Special assistant to the U.S. Attorney Kevin Robitaille, who argued on the Army’s behalf, said if the appeals court decides to overturn the conscientious objector ruling, it should refer the issue back to the Army for another review, and Aguayo should still face an Article 32 hearing on the desertion charges.

Goldberger said he hopes the court will rule not only to grant Aguayo conscientious objector status, based on his statements and actions, but also to order him freed from military custody since his alleged crime came because of mistakes made in not recognizing his opposition to war.

“Enough is enough,” he said. “This decision by the Army has been baseless and cruel. They’ve had two previous chances to recognize his status, and they’ve failed to give a reason for denying it twice.”

Aguayo had appealed his conscientious objector petition prior to his unit’s deployment, but the court refused to delay his tour while it considered the case. Goldberger said that forced his decision to go AWOL.

Deliberations of the appeals court typically take several months, but attorneys for Aguayo said they hope to hear a decision before the end of the year.

Aguayo’s four-year commitment to the Army was scheduled to end in January, but was extended by the service earlier this year until September 2007.