Joined by the ACLU, US Marine Sgt Gary Stein sued the US military yesterday seeking an injunction that would prevent or delay the Marines’ effort to discharge him.  Judge Marilyn Huff denied the injunction he requested, saying he did not show he would suffer irreparable harm from the separation board, which leaves open the possibility he can gain an injunction should the board recommend discharge.

His administrative discharge hearing is scheduled for today, though an actual decision by the responsible authority would likely occur later.

The lawsuit can be viewed here.  Within it, Stein makes interesting allegations, many of which have already been discussed.  For example, he notes that the Marine regulations require counseling before a decision is made to begin administrative discharge proceedings.  Stein claims he heard nothing from his leadership at all until they told him they were beginning discharge proceedings.

The military has great leeway in its decisions about personnel and retention.  With “good order and discipline” as justification, it has great liberty, and deference from the US judicial system, to make various personnel decisions.

Stein has advocates lining up behind him to defend his constitutionally protected right to free speech, including the ACLU.  It is possible that argument may work, but his strongest claim may still be that the military has given him insufficient guidance which he can follow.  Indeed, part of the lawsuit noted he had asked the Marines to answer three questions regarding his conduct and then allow him the opportunity to see if he could conduct himself in accordance with their responses.  The root question:

May an active duty, non-commissioned, U.S. Marine maintaining a Facebook web page bearing a clear disclaimer that all statements are personal views, not made in an official capacity and not representing the views of the Marine Corps, make statements thereon supporting or opposing either (i) a political party or (ii) a candidate for federal, state or local office or (iii) both?

As noted before, that’s not an academic question.  Military regulations are not clear on the topic of social media, and “The Social Corps,” the Marines’ attempt to give “suggestions” about social media, only makes it more confusing.  As a result of the lack of guidance and feedback from his leadership, Stein asserts the Marines have violated his right to due process.

Thus, there are constitutional questions on both sides.  It may come down to an issue of military discretion versus “fairness” in application of what seems to be unwritten policy.