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.