Maj. Jason Brezler's discharge is temporarily on hold after a federal court judge on Friday ordered the Marine Corps to prove it did not try to kick the officer out of the service for seeking help from a congressman over charges that he mishandled classified information, his attorney said.
Brezler has gained national attention for challenging a board of inquiry's recommendation that he be discharged after he tried to warn Marines in Afghanistan about Afghan police chief Sarwar Jan, whom Brezler claimed was corrupt.
On Aug. 10, 2012, just days after Brezler sent a classified briefing about Sarwar from his personal unsecured email account to the operations officer at Forward Operating Base Delhi in Afghanistan, a boy described as one of Sarwar's servants killed three Marines: Staff Sgt. Scott Dickinson, 29, Cpl. Richard Rivera, 20, and Lance Cpl. Greg Buckley.
A board of inquiry recommended in December 2013 that Brezler be discharged for sending the classified information from his personal account and for taking classified documents home from Afghanistan so he could write a book.
The Marine Corps agreed not to discharge Brezler until a federal judge ruled on his lawsuit challenging the board’s decision.
On Friday, Judge Joseph Bianco gave the Marine Corps 10 days to submit an affidavit showing that it intended to send Brezler to a board of inquiry before the service learned that Brezler had asked for help from Rep. Peter King, R-N.Y., according to Brezler’s attorney, Michael Bowe.
Brezler met King in March 2013 after he received an unfavorable fitness report, according to his lawsuit. That July, King sent then-Commandant Gen. James Amos a letter raising concerns that the Marines had not followed proper procedures when issuing the fitness report.
But the letter went to Amos’ legislative staff, so he "expressed shock" when he read an Aug. 25, 2013, Marine Corps Times story that Brezler had sought help from King, the lawsuit says.
"This is the first I heard of this," Amos wrote in an email to senior commanders, the lawsuit says. "I certainly have not seen a letter from Rep. King … need to get past news article and come back to me with what ground truth is please."
The commander of U.S. Marine Corps Forces Reserve ordered Brezler to appear before the board of inquiry five days after the Marine Corps Times story was posted online.
Bowe said Bianco on Friday asked the staff judge advocate for MARFORRES to show that Brezler’s board of inquiry package had been prepared before the Marine Corps received King’s letter and before the Marine Corps Times story was published.
In June, the attorney representing the Marine Corps filed court papers denying that Brezler’s board of inquiry was in retaliation for him talking to King.
Although the district court decided it has jurisdiction in this matter, it is extremely rare for federal courts to reverse the results of courts-martial, let alone administrative proceedings, said retired Marine Lt. Col. Gary Solis, a former military lawyer and judge.
One notable exception was when a federal judge overturned the court-martial of Army Lt. Willam Calley Jr., who had been convicted for murder in connection with the My Lai massacre in March 1968, Solis told Marine Corps Times on Friday.
However, there are instances when federal courts have jurisdiction in military matters, and those circumstances arise when a service member has lost pay and other benefits, said Solis, who spent 26 years in the Marine Corps.
Federal courts can also overturn military administrative discharge boards when their findings are not supported by evidence, said retired Marine Lt. Col. Guy Womack, a military defense attorney in Houston.
In one case, the U.S. Court of Appeals for the Federal Circuit ruled that a military officer was improperly discharged after his daughter accused him sexually assaulting her, Womack told Marine Corps Times.
"They said that although there is strong deference made to the service's decision, they looked at it and said: There's no evidence that he did this," Womack said. "The only evidence of sexual molestation was that the daughter had said that, but the daughter – before and throughout the incident – was a mental patient in a psychiatric ward."