April 14, 2012 @ 10 Comments

By Jack Minor

Documents filed today in court in the case of a Marine facing discharge for making statements critical of President Obama reveal multiple procedural violations, including ignoring testimony from a former staff judge advocate for the commandant of the Marines, a retired brigadier general, stating there was no basis for discharging Stein.

Brig. Gen. David Brahms said in a written statement, “I do not believe that … the behavior in question violates the cited UCMJ provision.”

The statement was among filings presented to Judge Marilyn Huff with the U.S. District Court in California asking her to stop the Marine Corps from fast-tracking a discharge of Sgt. Gary Stein.

The filings also cite other procedural improprieties committed by the separations board that made the recommendation.

The Marine Corps convened a separations board after receiving complaints regarding postings Stein had made on his personal Facebook page that were critical of Obama and his policies. The Marine Corps had recommended that Stein be given the discharge under other than honorable conditions which would cause him to lose all of his benefits.

On April 4, the day before the separation hearing, the court refused to issue a temporary restraining order stopping the proceedings, explaining it expected the board would hear and fully consider all matters that Stein would present in his defense, consistent with due process.

Following the actual hearing, the court again declined to issue the TRO which would have prevented the Marine Corps going ahead with Stein’s discharge. However recognizing the substantial constitutional questions at stake, an expedited hearing was scheduled tomorrow.

Gary Kreep, executive director of the United States Justice Foundation, told WND the three member board did not meet Huff’s expectations of fairness and ignored hypocrisy by the prosecution in its desire to get rid of Stein.

“Capt. Logan, one of the prosecution’s witnesses against Stein, has obscene political comments on his Facebook page that are directed at people he disagrees with,” Kreep said. “Logan even appeared in dress uniform on his postings.”

He said by contrast Stein made no attempt to associate his page with the Marine Corps in any way and there is no picture of him in uniform.

“He got advice from a JAG officer prior to posting the material, he did not do anything wrong.”

Kreep said the prosecution even acknowledged that the offenses Stein is charged with do not warrant a discharge.

“The punishment for what he did is a reprimand not a discharge,” he said. “The prosecution told the board that if he had been a commissioned officer he would be subject to a discharge and because of that he should be separated from the corps. They are attempting to discharge him at a breakneck speed.”

In the filing, Kreep noted the board committed several egregious actions.

On the day of the hearing Stein’s legal team was served for the first time with a stack of documentary evidence half an inch thick that the prosecution intended to submit to the panel for consideration that day. Despite being presented with such a large volume of material, Lt. Col. Hairston, the senior officer on the board, denied a request for a continuance to review the new information.

The filing also noted that Maj. Houltz, the supposed neutral adviser to the panel, acted as if he were a part of the prosecutorial team and instead of answering questions of the panel regarding legal issues he took over from Hairston, deciding objections and refusing to answer certain questions on the grounds that “we’re not going to sit here and build up a record for federal court. That’s not what this hearing is about.”

According to Kreep, Houltz even threatened a superior officer. Lt. Col. Atterbury, the supervising officer for the military legal team for Sgt. Stein, was threatened with removal after he objected to Houltz’s interference in the proceedings.

While media reports have said that Stein was being separated for comments made against Obama, the prosecution actually admitted that these charges did not warrant separation from the Marine Corps. They then turned around and said an “analogous” charge which only applies to commissioned officers should be applied to Stein in order to discharge him.

That charge is Article 88, Contempt Towards Officials, which says: “Any commissioned officer who uses contemptuous words against the president, the vice president, Congress, the Secretary of Defense, the secretary of a military department, the Secretary of Transportation, or the governor or legislature of any state, territory, commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.”

Attempts by Stein’s lawyers to introduce statements and testimony from multiple defense expert witnesses rejecting the government’s claim that Stein’s actions warranted an other than honorable discharge were rejected by Hairston.

Among the statements were those by Brahms, who has been a Marine for over 50 years, with 49 of them as a lawyer.

In Brahm’s statement he notes that DoD directive 1344.10, which Stein is accused of violating, is inherently confusing and difficult to understand.

“My reading of it indicates it is confusing and quite unhelpful. It is also inherently contradictory,” Brahms said. “If I cannot understand 1344.10 as a 74-year-old retired brigadier general and staff judge advocate to the Commandant of the Marines, there is little hope that a sergeant would understand.”

He also challenged the prosecution’s position that Stein represented the Marine Corps with his postings.

“There is nothing in the circumstances to suggest any influence or reasonable possibility of influence that the public would believe these blatherings were official policy or officially sanctioned. They were only the discussions of a Marine concerned about the direction of this country. There simply is no criminal offense here.”

Brahms placed the fault for the issue entirely at the hands of senior leadership.

“The proper response here is to make the ground rules clear the updated directive and more importantly, to hands-on leadership guidance which tells our young men and women of our corps what the rules are.

“This could have and should have been dealt with quietly through strong leadership,” he said.

While the board refused to hear the testimony of this veteran Marine, they had no problem allowing the prosecution to ask its witnesses for opinions as to whether Stein’s actions contributed to “a breakdown of good order and discipline.”

Kreep said the judge should issue an order stopping discharge proceedings against Stein because of egregious constitutional violations during closing arguments.

At that time, the prosecution raised what Kreep called irrelevant and inappropriate reasons the board should discharge Stein under other than honorable conditions.

Among the reasons cited was a recent Marine Corps Times article on “Anti-Obama Marines” and falsely claiming the tea party is a formal political party and thus Stein’s attendance at a tea party meeting violated Department of Defense directives.

The government also said Stein’s asking the court to stop the discharge proceedings in order to protect his constitutional rights was a reason for the other than honorable discharge.

The prosecutor argued, “He sues his commanding officer in federal court and his commanding general in the attempt to stop this board. That’s his right. I bring it up to show you that this is not a Marine who thinks about the institution. This is not a Marine concerned with the institution.”

Kreep told Huff that by urging the board to consider the lawsuit before her court as grounds for an other than honorable discharge the corps “committed an outrageous First Amendment violation by arguing that Sgt. Stein discredited the corps and deserved discharge because he sought judicial review in this court.”

He noted that because the board did not specify the reasons for its decision to discharge Stein, its decision is incurably tainted because it is impossible to determine if the board relied on that statement as a basis for its recommendation.

Rep. Duncan Hunter, R-Calif., a former Marine, wrote a letter to Stein’s commanding officer suggesting the sergeant should not face dismissal for an opinion shared by a majority of Marines.

Hunter said he was referencing Stein’s statement that he would not obey unlawful orders. Rep. Darrell Issa, R-Calif., also support Stein.

Stein testified that a statement that he would not obey unlawful orders from Obama was part of a discussion about letting U.S. troops be put on trial for the Quran burnings in Afghanistan.

He explained he was saying he would not follow orders if they included detaining U.S. citizens, disarming them or otherwise violating the Constitution.

Original Article 



    2 years ago

    Winning against the feds in court is a stacked deck these days, your required to uphold your innocence and you face a lot of less than stellar prosecutors who seem to be able to add charges and dismiss proof on a whim, this has been evident in so many fed cases to have made the news from prosecution of our own officers on the border to those serving in our armed forces. Challenges such as this where the remarks were subjected to review by a JAG officer are now non relevant to the prosecution and then asked to have this testimony stricken regardless of the defendants rights or innocence…we are now offering kagaroo justice and it will cost you plenty.

  2. Bob Head

    2 years ago

    Can you say “RAILROAD”, boys and girls?
    Thank you, Gary, for coming to this HERO’s defense!
    For God and country -

  3. Robert Smith

    2 years ago

    If this Marine looses this case, then there is no hope for any kind of Justice in the courts. I am a Navy Retired Lt. and I will tell you now that I would not have obeyed any unlawful order coming from a reckless breaker of laws, I swore and oath to defend the Constitution against enemies foreign and domestic. To me that meant any one who himself give little regard for the document that stands for the rule of Law, not the rule of lawyers. I will donate to his defense. And if necessary take up arms to defend his position.

  4. Glo

    2 years ago

    This site is dedicated to restoring constitutional governance
    carried out in decency and good order
    2012 is the Year We The People Take Back Our Power Over Our Servant Government by Claiming and Exercising our Right, — a Fundamental Right — to Petition the Government for Redress of Grievances, a Right Guaranteed by the First Amendment and every State Constitution.

    These are professionally drafted, legal Petitions worthy of our Constitution and our People. The Petitions address significant violations of our Constitutions which threaten our Liberty.

    Stand Up and Be Heard!

  5. Glo

    2 years ago

    Second Amendment Warrior
    Email: [email protected]
    “A well regulated militia, being necessary to the security of a free state,
    the right of the people to keep and bear arms, shall not be infringed.”

    New Item(s)
    My Thoughts
    Jury Nullification
    General Info


    My idea is to have millions of gun owners become a Second Amendment Warrior. If enough Patriots sign, then the government will have to forever leave us alone. The true Warriors will sign up early which will then embolden others to sign up.
    Warriors Pledge

    “I will never register my guns. I will never allow anyone to confiscate them.”

    If you agree take the Pledge. You join by signing the Guestbook.

    Retired Law Enforcement Officer, Ex-Private Investigator, Police Author, Lecturer, Who’s Who in – American Law Enforcement, the East, America, the World. VFW & NRA member. U.S. Navy, 1951-55. UN, Korea & China Service medals.

    After making Lieutenant I became a full time academy instructor specializing in Criminal Law, Evidence, Firearms (19 years, 17 as Rangemaster), Child Abuse and Police & Security Training. Also taught nearly all police subjects at satellite academies, in-service and armed security guards. Norbert (Nate) Tanguay, site creator/owner. I now live in Connecticut with my wife. Email: [email protected]
    Memorable Quotes from Warriors

    “As with our forefathers at Lexington/Concord when ordered to lay down our arms we must say NO – forcefully if need be.”
    “when they come to take them it will be time to use them “

  6. Patriot1

    2 years ago

    I think they’re doing this because Obama is scared of people like Sgt. Stein and wants him and others who think like him out of the military. Why? Because Obama is a dictator wannabe, and history tells us that dictators are only successful if they have the backing of the military. If they do not, their ass is toast. Obama would love nothing more than to lead America into a one world communist dictatorship, he’d love to confiscate the guns from all the citizens and turn us all into serfs, but if the military is full of loyal patriots like Sgt. Stein, it will backfire on him and blow up in his face and he more than likely would have to face the music for all his crimes. Should Obama ever give such a treasonous order to confiscate the guns from American citizens, it is my prayer that the military would turn on him with a vengence and administer fast, swift justice on his sorry commie ass!

  7. luvzforplay

    2 years ago

    I was in the Corps from 65 to 68 , back then we learned that an unlawful order was just that UNLAWFUL and was not to be followed , being that 80 to 85% of the people hwere in this country believe that Obama is not the President and should not even be in the White House mecause he has violated our Constitution time and time again , and we are talking about the very document that we all took and otah to preserve and protect , he has also committed several high crimes and misdometers that the media would normally be all over , but for some strange reason they refuse to even mention them . Now this is the second American serviceman that Obama has railroaded one did time for refuseing orders from someone that most of us doubt is the duely elected President because he is not qualified to run let alone be elected., I think both of these men who faught for this country should be honored for having the courage to stand up for this nation when most will not! Lets get Obama out of office and into some nice dark damp prison somewhere to answer for his crimes against this nation , he is truely a Clear and Present Danger to thew United States of America..

  8. John Golt

    2 years ago

    I also Served My country. U.S.N. 1963/67. Push come to shove, i also would NOT follow an UN-Lawful Order. And i would think that any order coming from this 1/2 white POS would be an UN-lawful one! If he can not prove he was born in the United States of America from TWO AMERICAN parent’s, he can NOT serve as Present of the United States of America. And EVERY one that has allowed this imposter to be sworn in is also a TRAITOR to the Republic of the United States of America!

  9. Guest

    2 years ago

    Mr Obama is a paranoid man obsessed with his safety and with good reason. The reason being that he is a liar, a fraud, a usurper and a disgrace to the PEOPLE’s rule of law…the Constitution. Also as one of our greatest men of color Martin Luther King Jr was asassinated and was loved by most of Americans. Obama thinks he is a target for the fact tha we are racist??? NOT. We are against liars and frauds. If you have noticed he takes multi protection every place he goes to and thinks every criticism of his reign is done by racists, terrorist Patriots and more crazy thhings he invents periodicly. He takes more than Air Force one on his trips with room for armored cars, and henchmen to accompany him.

    Sounds like paranoia to me.

  10. cordwood

    1 year ago


Join the Conversation and leave a comment!

Latest News

© 2014 United States Justice Foundation.