U.S. Marine Corps Maj. Gen. Eric Smith, the commanding general of 1st Marine Division, holds a Vietnam service streamer during the unit’s 77th anniversary ceremony at Marine Corps Base Camp Pendleton, Calif., Feb. 2, 2018. (U.S. Marine Corps photo by Lance Cpl. Roxanna Gonzalez)
A Marine caught up in the 1st Marine Division’s crusade to stamp out hazing now faces the prospect of being administratively separated from the Corps despite winning an appeals court’s decision to dismiss the charges lodged against him last year.
Sgt. Jamie Ortiz was one of nearly 30 Marines swept up in a legal storm last summer by Maj. Gen Eric Smith, the 1st Marine Division commander, and his effort to crack down on hazing across the division.
Ortiz was among a slew of Marines charged with hazing last year. But those charges were dismissed and Ortiz won a court victory in February when the Navy-Marine Corps Court of Criminal Appeals ruled in his favor and rebuked the general for showing “personal interest” and bias in his efforts to stamp out hazing.
Now, despite winning in court, Ortiz says he’s being pushed out of the Corps.
On April 6, Ortiz, a Marine with 1st Combat Engineer Battalion out of Camp Pendleton, California, was presented with a notification of recommendation for administrative separation.
If the Corps successfully separates him, it could bar the young sergeant with an otherwise “spotless record” from ever re-enlisting in another service, according to his civilian lawyer Aaron Meyer.
“Lt. Col. C. M. Haar, Commanding Officer of 1st Combat Engineer Battalion, is attempting to invoke a seldom-used ‘Notification’ (paper) separation of Sgt Ortiz, under the guise of a frivolous ‘Commission of a Serious Offense’ basis…for an allegation of a ‘pinning’ ceremony,” Meyer told Marine Corps Times in an emailed statement.
Ortiz’s lawyer argues the push to separate Ortiz is nothing more than a reprisal, and that the timing of the notice is suspect.
Ortiz is approaching the milestone of six years of service on April 26, which would legally force the Corps to provide Ortiz with a board, offering the sergeant a chance to plead his case.
The appeals court judge in February was highly critical of how the division’s commanding general handled the hazing allegations.
“A reasonable observer would conclude that the CA’s [Convening Authority] ego is closely connected to the offense, and thus he has a personal interest in the matter,” the judge said in the ruling. The judge dismissed the charges against Ortiz.
But the Corps argues that separating Ortiz is appropriate because the appellate court’s ruling was concerned “exclusively with the procedure of the court-martial” and not on the “substance” of charges against Ortiz, Marine spokesman Capt. Paul Gainey told Marine Corps Times Thursday.
“The ruling does not preclude another superior convening authority from taking action and does not preclude the Marine Corps from further administrative action.,” Gainey said.
Marine investigators had “concluded” Ortiz was guilty of hazing Marines at the unit, Gainey added.
“The cowardice of this quiet paper separation is aggravated by the fact that the Command waited until all of their frivolous appeals were denied before deciding to revert back to making their own justice,” Meyer said. “They are obviously undeterred by the repeated rulings dismissing processes as a result of their illegal tactics, attempting to sidestep such pesky nuisances as “due process,” “a chance to be heard,” or the “regulations” of the “Marine Corps Separations Manual.”
Gainey explained to Marine Corps Times that any Marine up for administrative separation is “afforded all administrative procedural rights as outlined by the Marine Corps Order on Separations.”
“A Marine has the opportunity to submit matters, whether they be mitigating or exculpatory circumstances, to the separation authority for consideration. A Marine also has the right to consult with an attorney during the process,” Gainey said in an emailed statement.
In July, Ortiz was placed in pretrial confinement for allegations that he hazed five other Marines and assaulted two.
He remained in pretrial confinement for nearly two months away from his wife and newborn baby, his lawyer told Marine Corps Times.
Ortiz was released from confinement on August 29, 2017, after a judge ruled “that the government has not met its burden by a preponderance of the evidence that confinement is necessary because Sergeant Ortiz will engage in further serious misconduct and lesser forms of restraint are inadequate.”
His commanding officer, in a memorandum obtained by Marine Corps Times, argued confinement was necessary because “Sergeant Ortiz has demonstrated a continued pattern of misconduct and is a flight risk.”
But that same memo also noted Ortiz had no prior nonjudicial punishments, negative “Page 11” entries in his service record book, nor court-martial convictions.
Investigators alleged Ortiz had attempted to coerce a witness.
After release from confinement, Ortiz was placed on pretrial restriction where he has largely been confined to the 33-area aboard Camp Pendleton.
“Even after the Court dismissed the charge, ruling that there would be no trial due to the malfeasance of Smith and Haar, Haar remained undeterred and defiant, keeping Ortiz on pretrial restriction with the approval of Smith,” Meyer said in an email to Marine Corps Times.
Meyer argues the “illegal” pretrial confinement, restriction, and now the notice to potentially separate his client from the Corps are evidence of retribution from senior Marine officials.
Ortiz is facing a potential administrative separation in which the “least favorable characterization of service he may receive is a General (Under Honorable Conditions),” Gainey said.
But Ortiz’s lawyer says the RE-4 code Haar assigned in the notification for separation, which Marine Corps Times has obtained a copy, is a “death penalty” for Ortiz and his family. An RE-4 code upon separation generally restricts a service member from ever re-enlisting in another branch of service.
“These leaders have effectively unchecked power to abuse these junior Marines that are the heart and soul of the Marine Corps,” Meyer said.
Smith has recused himself from separation proceedings against Ortiz and the commanding general of 1st Marine Expeditionary Force will serve as the “separation authority” and make the determination whether Ortiz will be separated,” Gainey explained.