Military court upbraids Marine commander for bias in hazing case

A military appeals court has chastised a two-star Marine Corps division commander for showing bias in overseeing a hazing court-martial after the general went on a campaign to oust such “jackassery” from the service.

The United States Navy-Marine Corps Court of Criminal Appeals backed the trial judge, who fired Maj. Gen. Eric M. Smith from his role as convening authority. The judge, Col. Matthew J. Kent, also dismissed all charges against Sgt. Jaime Ortiz. The Corps can refiled them under a new convening authority.

The judge said Gen. Smith, commander of the storied 1st Marine Division at Camp Pendleton, California, became an “accuser” rather than an impartial overseer. The government appealed in November and lost with Thursday’s unanimous three-judge opinion.

Gen. Smith made his anti-hazing campaign his top priority as he faced an uptick in non-commission officers abusing the lower ranks. He issued pointed instructions and a series of emails. He mandated the exact punishment, saying all substantiated cases of hazing would result in mandatory separation, or “gone from the team,” has he told his staff.

“In these emails, he expressed great concern with the number and frequency of alleged hazing incidents within 1st MarDiv, announced that hazing was his foremost issue of concern, and directed his subordinate commanders and staff to plan for and take specific actions to combat hazing,” the appeals court said.

One email to commanders said, “I’m huddling up the Div leadership to determine how to tamp this brush fire down before it takes off into a full fledged forest fire. “

He said that if there was an ongoing criminal investigation, he was not going wait for a conclusion before he would “take action.”

“We’re the [1st MarDiv], victors at Guadalcanal, and we’re reduced to dealing with jackassery from a few LCpls who think they are in charge,” he said. “That will be proven wrong asap.”

The appeals decision said that when Sgt. Ortiz was jailed in July, 20 other Marines were in pretrial confinement on the same-type charges.

In the following weeks, Gen. Smith sent out a new email that seemed to temper his remarks:

I have a strong personality and am in a position of authority, so I am obligated to ensure that none of you interpret my message against hazing as directing any specific outcome for any particular case. I do not require or expect a specific disposition, outcome, or sentence in any administrative or military justice case.”

The trial judge said in his ruling that “a reasonable observer would conclude that the [CA]’s ego is closely connected to the offense, and thus he has a personal interest in the matter.

The appeals court listed Gen. Smith’s various threats such as shutting down all operational training until hazing was abolished.

“And most troubling,” the court said, “he let everyone know that he was personally offended by those who were accused of hazing, because they had ’just … flipped [him] the bird’ and he was headed their way to show them how unwise that decision and action was within his command.”

The court added, “we agree with the military judge’s conclusion that a reasonable person would impute to Maj. Gen. Smith a disqualifying personal, rather than official, feeling or interest in the outcome of the appellee’s case.”

The Marine Corps Times reported in October on Gen. Smith’s drive against hazing, writing that 30 Marines had been sent to the brig and 16 had been discharged.

The hazing included forced alcohol consumption and forced haircuts, according to a Gen. Smith email, the newspaper said.

The appeals court said Sgt. Ortiz was accused of hazing five Marines, one with a fist strike to the chest.

Gen. Smith held command posts inside the 1st Division 2003-06 and did two combat tours in Iraq.

He deployed to Afghanistan while with the 2nd Marine Division.

He held a staff position at the Pentagon under the Marine commandant the first part of 2107 before taking over the 1st Marine Division in June.