The San Diego-based 1st Marine Division has been rocked by a hazing scandal since June, when the new division commander ordered a crackdown on abuse and other illegal behavior.
The alleged hazing has included “outright physical assault” as well as forced alcohol consumption, forced haircuts and making Marines do fitness exercises for not knowing certain information, according to an email that the division commander, Maj. Gen. Eric Smith, wrote to all 1st Division commanders and sergeants major in July.
Since then, up to 30 Marines have been sent to the brig for allegations of hazing, court papers show. And at least 16 Marines have been administratively separated for hazing since June, a Marine official said.
At the time of Smith’s email, seven hazing incidents had been reported in the previous week. Smith was apparently incensed that some incidents allegedly happened around the same time of the July 10 crash of a Marine KC-130T that killed 15 Marines and one sailor in Mississippi.
“I’m not here to inflict group punishment, but my assessment is that I’ve just been flipped the bird by lots of lance corporals, so I am headed their way to demonstrate this is an unwise [course of action],” Smith wrote in the email, which was obtained by Marine Corps Times.
“I don’t plan to focus on anything else until we solve this issue,” Smith wrote in the email.
Smith vowed to personally adjudicate all cases of alleged hazing and said that all substantiated cases would result in mandatory processing for separation. The general also ordered that all of the command’s hazing investigations be finished within seven days, regardless of whether other agencies have not yet completed their own investigations.
Yet Smith’s iron-fisted crackdown on the hazing allegations has created its own problems, as at least one military judge said the general’s statements created the appearance of unlawful command influence that can deprive the accused Marines of a fair trial.
The 1st Marine Division has administratively separated 15 Marines for hazing since June 23 and another Marine was separated after being convicted at court-martial of hazing, said division spokesman 1st Lt. Paul Gainey. All the Marines separated were at the rank of corporal and below.
“The command will not release the details on specific cases,” Gainey told Marine Corps Times.
Smith decided to retain three other Marines who went to nonjudicial punishment proceedings for hazing, Gainey said.
“There is a ‘sub culture’ in our Corps,” Smith wrote in June 27 guidance. “Maybe there always has been. Whether it’s anti-women, anti-minority, anti-gay, etc., we have to kill it off. We are all willing to die for our Constitution and that’s all that counts.”
The crackdown stemmed from a spike in hazing incidents in three units: 2nd Battalion, 7th Marines; 3rd Battalion, 7th Marines and the 3rd Assault Amphibian Battalion, said Phillip Stackhouse, an attorney based in San Diego. Stackhouse and his wife, who is also an attorney, have represented a total of three Marines from the 1st Marine Division who have been accused of hazing.
In the AAV battalion, Marines were accused of pinning blood stripes on newly promoted corporals by kneeing them in both thighs, Stackhouse said.
The Marines in the AAV battalion received nonjudicial punishment and were administratively separated by the notification procedure, which means the Marines had no right to appear before a board or a hearing, Stackhouse said.
“They basically notify you in writing: ‘I plan on separating you,’” Stackhouse said in an interview. “You can respond in writing if you’d like. Then the general will make the decision — based upon the underlying misconduct and your petition to stay in — to separate you or not.”
Marines who are separated in this fashion receive an honorable or general discharge, but the misconduct will be included on their DD-214 forms as the reason why they left the Corps, he said.
In separate cases, Stackhouse and his wife succeeded in getting charges dismissed against two Marines accused of hazing, but the Marine Corps can still kick them out using this method, Stackhouse said.
“Our clients are great — they’re really good Marines,” Stackhouse said. “The allegations against them are defensible and they’re so good that even if they are convicted, they wouldn’t get discharged.”
Nevertheless, Stackhouse said he expects the Marine Corps will try to separate those Marines using the notification procedure because it is “highly unlikely that a board would separate them.”
“It is a way that the commanding general can and does use his power and position to administratively separate people, giving them essentially no due process rights.”
It is unclear how many Marines have been placed in pretrial confinement while being investigated for hazing. Gainey said the 1st Marine Division does not track Marines who stay in the brig for less than a week.
“Commanding officers may lawfully order any Marine into pretrial confinement when he or she reasonably believes the Marine committed an offense, the Marine will continue to engage in serious criminal misconduct, and less severe forms of restraint are inadequate,” Gainey said.
But attorneys for Lance Cpl. Chaz Hurd claim that nearly 30 Marines have been held in the brig since June after being accused of hazing, court papers say. Hurd has been confined since June 30 when he and two other Marines were publicly accused of hazing in front of their battalion at a formation, according to Hurd’s defense attorney Daniel Conway.
“They’re throwing young Marines in the brig that don’t deserve to be there,” Conway told Marine Corps Times. “Worst case scenario, these are often nonjudicial punishment-type cases.”
Putting Marines in custody for days is an oft-used Marine Corps tactic to force Marines to accept an other-than-honorable discharge, Conway said.
In Hurd’s case, he was initially told he would be let out of the brig in a week, but he has remained in confinement for more than three months, his attorney said. Hurd’s trial began on Tuesday and is expected to last until Friday.
Hurd, based at Twentynine Palms, California, is pleading not guilty to charges of hazing and other offenses for allegedly making three Marines put their chests on their helmets and holding a plank position without using their hands, hitting a private first class with a pillow, and making an alleged threat for telling Marines to train hard, Conway told Marine Corps Times.
One of the Marines whom Hurd allegedly hazed told investigators that Hurd threatened him not to testify about the alleged hazing by telling him: “You have a huge target on your back, so take this warning as me being nice because once we get to the field, it’s fair game and everyone is coming at you,” according to Hurd’s charge sheet.
Hurd denies that. Conway said his client was not threatening the Marine. Instead, Hurd was talking about having the Marine do more training for combat lifesaving skills.
Although he is 23 years old, Hurd is also charged with underage drinking, an error that Conway says reveals the mistakes that investigators can make when they only have seven days to look into allegations of misconduct, Conway said.
“Those command investigations, especially the ones that are done by junior officers, are not worth the paper they’re written on,” Conway said.
Conway claims that Hurd and other Marines have been denied due process because Smith has made clear that Marines accused of hazing will be discharged. Hurd’s defense attorneys argued that the case should be thrown out because Smith’s actions to combat hazing within the 1st Marine Division were “the epitome of unlawful command influence.”
“Rather than giving his subordinate commanders time to exercise their authority and leadership on this issue, he instead chose to personally reach down, remove the adjudication of this issue from his battalion and regimental commanders, and personally dictate that these accused Marines be ‘gone’ from his team, and that he would not ‘focus on anything else until we solve this issue,’” the defense argued in a motion.
While Hurd’s attorneys were unable to get the charges against him dismissed, a military judge found the defense showed evidence of “apparent” unlawful command influence in the case, according to an Oct. 6 court ruling. As a result, the judge allowed the defense to object to a total of two potential jurors.
A military judge in a separate case also gave the defense more opportunities to reject potential jurors after ruling on Aug. 21 that Smith’s guidance on hazing created the appearance of unlawful command influence, Gainey said. The Marine was ultimately convicted of hazing and assault.
Smith was not available for an interview. On the day that the first military judge ruled that the general had created the appearance of unlawful command influence, Smith issued additional guidance to make clear that he was not dictating the outcome of administrative or disciplinary proceedings.
“More important than my desire to stamp out hazing is our collective requirement to adhere to our Constitution and the Uniform Code of Military Justice,” Smith wrote on Aug. 21. “I would never attempt to influence anyone’s decisions regarding a specific case, and if anyone were to perceive that I was doing so, that person is obligated to ignore that influence and do what is right. I do not require or expect a specific disposition, outcome or sentence in any administrative or military case.”
But since Smith’s subordinates know how strong his feelings on hazing are, they could still be influenced by Smith when deciding hazing cases, said retired Marine Lt. Col. Guy Womack, a military defense attorney in Houston.
Marines below the rank of sergeant who have been in the Corps less than six years have no right to request an administrative hearing if their commands recommend they be separated, Womack added.
Womack represented Cpl. Robert Richards, who was one of the scout snipers shown urinating on Taliban corpses in a 2012 video. Then-Commandant Gen. James Amos was accused of unlawful command influence when he allegedly told the officer in charge of the urination investigation that he wanted the scout snipers to be discharged.
That case was ultimately referred a summary court-martial, where Richards pleaded guilty. He was medically retired from the Corps in 2013 and died a year later of drug toxicity from one of his medications.
“Here, we have the commanding general of a division, in essence, telling company commanders, battalion commanders, regimental commanders that this particular offense, above all the others that might affect our Marines, demands the general’s attention, and certainly implying that they should confine any Marine accused of hazing — even without a thorough investigation,” Womack told Marine Corps Times.
Even more troubling is Smith’s directive that Marines be processed for administrative separation if hazing allegations against them are substantiated, Womack said.
As division commander, Smith is the separation authority, so he is the one who ultimately decides whether a Marine should be separated.
Womack said that officers who have the authority to separate Marines should be neutral and detached so that they arrive at a fair decision, he said.
“Here, the commanding general has ordered it to be done,” Womack said. “So, of course, we would expect that when it comes to him for a review, he would follow his own policy and discharge everyone. It’s kind of like Roger Goodell, of the NFL, who is the person who meets out punishment to NFL players. If they appeal, they appeal to him for relief, and they ask him to overrule himself.”
The U.S. military in general — and the Marine Corps in particular — has made great strides in combatting hazing, said Zachary Spilman, a military law expert and lead contributor to the military justice blog CAAFlog.
“As a result, hazing is a rare occurrence, and is certainly not a growing trend,” said Spillman, who made clear he was giving his personal opinion and not speaking on behalf of the Marine Corps or his other clients. “I can’t recall any recent hard data on hazing in the Marine Corps, but anecdotally I believe that it is rare.”
The Fiscal 2017 National Defense Authorization Act requires the military services to track incidents of hazing and issue a report to Congress in January 2018.
“Hazing is unauthorized conduct that is cruel, abusive, humiliating, oppressive, demeaning or harmful,” Spilman said. “Fundamentally, hazing is an abuse of power and authority. Reports of hazing (high-profile or otherwise) reflect that victims know that it’s wrong and know that their reports will be taken seriously.”