After an administrative separation hearing Thursday that stretched for more 12 hours into the late evening, a panel of three senior Marines recommended that Stein be discharged under other-than-honorable circumstances as punishment for comments and activity on his Facebook page, Armed Forces Tea Party. Under particular scrutiny were posts expressing blunt and even harsh criticism of President Barack Obama and his candidacy for re-election.
Under military policy, troops are not allowed to speak at political rallies or make partisan statements as a representative of their service, but Stein’s defenders have argued he was acting and speaking as an individual, protected by his First Amendment rights.
Following the late-night Thursday announcement that Stein was recommended for discharge, responses from Stein and his supporters struck a hopeful note. “Lost a battle but not the war,” wrote moderators of the still-active Armed Forces Tea Party page. On Stein’s page, he kept it even simpler: “On to the next fight.”
But as Friday dawned on the West Coast, other supporters said this fight wasn’t over just yet. With a recommendation for discharge, Stein’s case now goes to Brig. Gen. Daniel Yoo, commander of the Marines’ Western Recruiting Region. Yoo will have 30 days to accept the recommendation or reject it, in which case Navy Secretary Ray Mabus will have the final say in the case, Marine Corps Recruiting Depot San Diego spokesman Maj. Michael Armistead said.
U.S. Justice Foundation director Gary Kreep said he is optimistic of getting a legal hold on the case approved in federal court before Yoo gets a chance to take action.
An earlier motion to stay the case in order to give Stein more time to build a defense was struck down Wednesday, but Kreep said the judge who heard the motion, Marilyn Huff, had discussed the possibility of further motions if there were concerns about how the military hearing was conducted.
Kreep said he believed there were a number of problems with the hearing, including almost 30 pages of documents presented as evidence that Stein’s legal team had not seen and defense witnesses who were not allowed to testify.
“We’re going to be filing additional pleadings as early as today that seek to block this judgment from going forward,” he said.
Stein’s attorney, Mark Brewer, could not be reached for comment on the outcome.
Jeff Schwilk, the founder of local conservative group SoCal Patriots, said he was looking forward to seeing how sympathetic the judge would be, but had no doubt that Yoo would choose to discharge Stein if given the option.
“I think we can all see that it’s going to be a rubber stamp,” Schwilk said. “I wouldn’t be surprised if the general had already signed it.”
Schwilk said the speed with which the hearing took place-Stein received notice about proceedings March 21-seemed suspect, a rush to separate Stein and the controversy from the Corps. “It seems pretty clear to me, as a retired 21-year Marine, that outside political forces are influencing this case,” he said.
Meanwhile, staff of a congressman who has taken a public stand in support of Stein, Rep. Duncan Hunter (R-Calif.), said they were similarly disappointed with the proceedings and the outcome of Stein’s case. “Only when the issue gained national media attention was the possibility of separation raised,” said Hunter communications director Joe Kasper. “The Marine Corps has had plenty of opportunities to address this issue if it was that big of a problem. The Marine Corps seems to have missed opportunity after opportunity to address this through different means.”
Kasper said Hunter’s office would not try to intervene as the case moved forward, allowing Marine Corps officials to act as they saw fit. “However they choose to proceed, that's their right, but it doesn't excuse how things have been handled,” he said.
