U.S. Marine Corps Maj. Gen. Eric M. Smith, the commanding general for 1st Marine Division, talks with a Marine during a battle field circulation (BFC) at Marine Corps Air Ground Combat Center, Twentynine Palms, California on Dec. 10, 2017.

SAN DIEGO (Tribune News Service) — A military court has upbraided a Marine two-star general at Camp Pendleton for unlawfully meddling in a court-martial case against a non-commissioned officer accused of abusing his troops.

In a ruling issued last week overturning the court-martial conviction of Sgt. Jaime Ortiz of 1st Combat Engineer Battalion, the U.S. Navy-Marine Corps Court of Criminal Appeals in Washington, D.C., found that Maj. Gen. Eric M. Smith went too far in his crackdown against hazing throughout 1st Marine Division by committing unlawful command influence.

Called the "mortal enemy of military justice," unlawful command influence occurs when senior leaders coerce parties in a court-martial case, jeopardize the appellate process or undermine the morale, respect and public confidence in the armed forces by appearing to pressure others to tip the scales of justice.

Prosecutors had alleged that Ortiz conspired with fellow noncommissioned officers to haze five junior Marines by forcing them to get special haircuts and pressing their metal rank insignia into their chests. Marines also were ordered to perform unauthorized physical punishment and Ortiz was accused of punching two of them in the chest, according to court filings.

The Marines have tried to eradicate hazing for five years. In 2013, former Marine commandant Gen. James Amos issued an anti-hazing order that was designed to track and stamp out abuse throughout the Corps.

Two years earlier, a lance corporal committed suicide after fellow Marines beat him for falling asleep on watch, an incident authorities concluded was a form of hazing.

On Nov. 11 – Veterans Day – Gunnery Sgt. Joseph Felix, a Parris Island drill instructor, was convicted of abusing recruits, especially Muslim volunteers. He was sentenced to 10 years in prison and will exit the service as a private with a dishonorable discharge.

Smith took command of 1st Marine Division on June 22. Echoing Amos, one of his first acts was issuing his "Commanding General's Policy Statement on Hazing." It called on his commanders to involuntarily discharge anyone found to have abused lower ranking troops.

That order has so far triggered 18 administrative separations, according to 1st Marine Division spokesman Capt. Paul M. Gainey.

On July 11 and 12, Smith sent a series of emails to commanders, their senior enlisted leaders and his military legal team to urge them to take immediate actions to curtail hazing, adding that abusing the troops was a sign of disrespect to their commandant and fellow Marines who were fighting and dying overseas.

Comparing all Marines and sailors in his command to his "sons and daughters," Smith told them that he'd reviewed five hazing allegations during the week, a sum that was "a red star cluster for me." He termed the abuse "THE single biggest issue I have, and that word does not seem to be getting down to all hands."

Smith wrote that he was "huddling up" with his division leadership "to determine how to tamp this brush fire down before it takes off into a full fledged forest fire. That said, each of these events allegedly happened in our battalion areas. That tells me we are not providing the supervision required and those who would haze have no fear of reprisal or being caught. That stops today."

Even if Naval Criminal Investigative Service agents were still probing the allegations, Smith urged his commanders to never wait and instead take action.

"(T)he Marine Corps owns the barracks, not a few salty (lance corporals) who probably can't fight their way out of a wet paper sack. We're the (1st Marine Division), victors at Guadalcanal, and we're reduced to dealing with jackassery from a few (lance corporals) who think they are in charge. That will be proven wrong ASAP," he wrote.

Ortiz was arrested on July 13 and placed into pretrial confinement alongside 20 other Marines.

He was charged on Aug. 7. Eight days later, Smith convened a court-martial against him and Ortiz's attorneys immediately filed a motion to quash the case, arguing that the general had strayed from unbiased justice to become a "direct accuser."

Under military law, generals are barred from convening trials against Marines if they have a direct, personal stake in the case.

The trial judge agreed with the defense attorneys and moved to to vacate Ortiz's case without prejudice, which means that military prosecutors can try him again.

The judge also disqualified Smith from any future role in Ortiz's case, meaning another general in a different command would need to start the entire process over if they still wanted to go after the sergeant.

Prosecutors appealed the decision on Nov. 7.

Writing for the appellate tribunal, Judge Col. K. Scott Woodard said that some things Smith did during his anti-hazing crackdown were lawful, like expressing disdain for abuse and noting its cancerous effects on operational readiness, good order and discipline within the Corps.

But Woodard also pointed to everything else Smith did to compromise the case: So irked by the alleged abusers, Smith sought to show them who was the boss, even if investigators had not finished their probes. He transformed their alleged misconduct into personal rebukes of him, the commandant and Marines who had recently died on duty. He threatened to shut down all training in the division in order to address hazing.

"And most troubling, 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," Woodard wrote.

Smith declined an interview with The San Diego Union-Tribune, but his spokesman Gainey reiterated that his division would continue to go after Marines alleged to have abused their troops.

"Hazing is contrary to our core values and is prejudicial to good order and discipline," he said in an email to the newspaper. "It threatens the strength of our small units and directly impacts our combat readiness. Hazing in not acceptable in the 1st Marine Division. Any hazing will be investigated and adjudicated appropriately."

He pointed to Smith's "Supplemental Guidance on Hazing" issued to the division on Aug. 30, shortly after defense attorneys filed a motion warning the him that he'd gone too far.

"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," Smith wrote. "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. 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 justice case. "

A Texan, Smith joined the Marines in 1987. He fought in the 1991 war against Iraq and conducted rescue operations in Liberia. He served on two combat deployments to Iraq between 2003 and 2006 and another to Afghanistan in 2012.

Military prosecutors have not determined whether they will continue their case against Ortiz.

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