A federal judge refused Wednesday to stop a military separation hearing for a Camp Pendleton-based Marine sergeant facing discharge on "other than honorable" conditions for his "Armed Forces Tea Party" Facebook page and criticism of President Barack Obama.
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Sgt. Gary Stein, 26, sued in federal court on Tuesday, arguing his right to free speech had been violated.
One of Stein's attorneys, David Loy of the American Civil Liberties Union, told U.S. District Court Judge Marilyn Huff that the "Marine Corps was trying to railroad a good Marine out of the Corps for exercising his First Amendment rights."
Another of Stein's attorneys, J. Mark Brewer, said Stein's legal team asked the Marine Corps to delay Thursday's separation hearing so Stein could present a complete case, but the Corps refused.
Huff declined to issue a temporary restraining order to stop the hearing, saying it was not a foregone conclusion as to what the three-person panel hearing the separation issue would do.
There was a chance, the judge said, that Stein could be retained by the Marine Corps or given an honorable discharge.
Stein's attorneys argued the separation hearing would be "futile," but Huff disagreed.
"I do not hold that belief," the judge said.
Huff said the plaintiff failed to show he would suffer "irreparable harm" should the hearing go forward.
Last month, Stein was put on notice of a possible violation of the Uniform Code of Justice after he said on Facebook that he would not follow certain orders from the president.
He later clarified those statements, saying he would uphold the Constitution but wouldn't obey any unlawful orders.
Stein's attorneys told the judge that he had a disclaimer on his Facebook page, noting that his postings were his personal beliefs and had nothing to do with the military.
Brewer said Stein was told two years ago that he could post his opinions on his Facebook page as long as he included the disclaimer.
"He has the same right to free speech as you or I do," said Brewer.
Army Veteran Rick Rogers, who now hosts a military talk radio show on 1170 AM, told 10News that is not exactly true.
"There may be visceral feelings that you can say what you want," he said. "I am a journalist all for free speech but in the military you can't say whatever you want. Anyone who knows military law knows this. If everyone in the uniform criticized the president there would be chaos in the ranks and you wouldn't be able to function."
Brewer said Stein wants to re-enlist in the Marine Corps, but may not get that chance.
"This is a man who served his country for almost nine years," Brewer told the judge.
The attorney said Stein "doesn't have a snowball's chance in July of getting a fair hearing [Thursday]."
The complaint named Stein's commanding officer, the Secretary of the Navy and the commanding general of the Marine Corps Recruit Depot, where Stein worked as a weather forecaster.
Stein, of Temecula, attracted national media attention after he started the Armed Forces Tea Party page in 2010.
In the complaint, Stein alleges that during the 17-month period from November 2010 through March 1, neither his commanding officer nor any other officer tried to restrict his Facebook activities, nor was he told his Facebook activities prejudiced good order and discipline.
The complaint states that on March 21, Stein was notified by his commanding officer that he was recommended for discharge because of alleged misconduct, including statements made against the president.
The government's attorney, Tom Stahl, said what Stein wrote on the Facebook page is not the issue. He said the issue was posting the comments used on a Marine Facebook page, which was in violation of the Uniform Code of Military Justice.
Stein drew support from at least two conservative local congressmen. Rep. Duncan Hunter, R-Alpine, wrote a letter to Stein's commanding officer stating the sergeant should not face separation for an opinion shared by "a majority of Marines." Rep. Darrell Issa, R-Vista, also expressed support for Stein.
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