Attorney J. Mark Brewer tells NBC 7 reporter Lea Sutton what evidence they will present for Sgt. Gary Stein, a Marine who is appearing in court for making negative comments toward President Barack Obama on social media.
A military board recommended dismissing and stripping the benefits from a local Marine for comments he posted to his Facebook page.
Sgt. Gary Stein, a nine-year member of the U.S. Marines, started a Facebook group called "Armed Forces Tea Party" in 2010. The page displayed posts that Stein's commanding officers have since called into question.
Stein faced a military panel in Camp Pendleton on Thursday for a separation hearing. The Military Separation Board said he committed misconduct and should be dismissed, the Associated Press reported.
The board's recommendation will be passed on to a general who will either accept or deny it.
If the general agrees with the board, he could be denied veterans benefits and would not be allowed on military bases.
A posting brought up during Thursday's hearing was one with images of President Barack Obama's face superimposed on a jackass, the Associated Press reported. He also sold stickers that read "Nobama" online, the prosecutor said.
On Thursday morning, Stein posted a message from his personal Facebook account to the Armed Forces Tea Party group. In the note, he said a win in today's hearing would be a win for freedom -- but that he was extremely anxious about the results of the hearing.
"Today my 9 year career with the Marine Corps will be on the line for a statement of nearly 2 dozen words," he wrote. "My heart is heavy this morning I tie up my boots and start my hour drive to Camp Pendleton."
Attempts to delay the hearing in front of the board were not granted by a US District Court judge Wednesday. Judge Marilyn Huff said this is an "exceptionally complicated issue," but the courts should not step in at this point.
"The military should be able to sort this out," Huff said.
The board may still agree to a 24-hour delay at the start of Thursday's hearing, though.
A new document brought forward in the case revealed that Stein posted on Facebook on March 23, "As an active Marine I say, 'Screw Obama' and I will not follow orders from him."
There were at least four other times a US Attorney told Stein to tone down his "imflammatory" political comments. His lawyers say the possibility of discharge is "absurd" and "heavy handed." The lawyers say USMC is trying to "railroad a good Marine out of the Corps" for expressing his First Amendment rights.
After Stein posted objections to President Barack Obama's healthcare policy and encouraged others to go against the orders of superiors if they disagree with the actions, the U.S. Marines Corps decided to reconsider a previous decision to not take punitive action against him.
Sgt. Stein's attorneys say the Pentagon's rules about troops' political commentary are "overly vague."
The military started monitoring Stein's Facebook group after he posted his stance against prosecuting Americans for burning the Quran in Afghanistan.
According to Stein he has been placed on a desk job with no access to computers at the San Diego Military Recruiting Depot.
Stein’s defense team said the Marine was exercising his First Amendment rights through his Facebook page.
“We believe that Sgt. Stein and other members of the military have a right to free speech just the same as you and I do,” said J. Mark Brewer, of Stein’s defense team.
Former Marine Corps attorney Doug Brown said First Amendment rights are modified for service members.
"It's a violation of the Uniform Code of Military Justice to disrespect a superior officer -- the president is at the top of the chain of command so that rule applies to him," explained Brown.
Brown said the board will have to decide if Stein was disrespectful to the president, and whether he engaged in partisan politics.
“Everyone's entitled to their own individual opinion but when you put on your uniform and you hold yourself to the public as a member of the armed forces, then you cannot engage in partisan political activity,” added Brown.
Stein’s defense team, however, said the military laws are too vague.
“The military is unilaterally deciding what their own terms mean without giving any clear direction to Sgt. Stein or anyone like him. What is a partisan cause?” said Stein’s defense attorney Gary Kreep.