Here’s a piece from NPR about a Marine who is soon to be an ex-Marine for violating Article 88, UCMJ.
Here’s where his lawyers go off the track,
“As the Los Angeles Times reports, “lawyers for Stein said that because his comments were made off-duty, not in his capacity as a Marine, they are protected by the 1st Amendment. … ”
All Marines know you’re on duty 24/7. There is no off-duty.
UPDATE: Here’s the article from NPR updating this story. I don’t know Marine procedure in a case like this, but I suspect it’s similar to the Air Force procedure. Since the Marines were trying to get an other than honorable administrative discharge (which is different and not quite as bad as the punitive bad conduct or dishonorable discharges available at court-martial), the sergeant would have been entitled to an administrative discharge board with members (jury equivalent) and other folks acting as the prosecutor and judge equivalents. Those boards don’t have the same rules as a court-martial, so they’re a lot more fun from a JAG perspective – all questioning and argument without all the motions and paperwork. Once the Board comes down with its recommendation, it’s up to the commander to approve or disapprove the recommendation. The commander, at least in the Air Force, doesn’t have to follow the Board’s recommendation. In this case, though, he did follow their recommendation and now the sergeant is on his way to being a former Marine with a service characterization which won’t get him any VA benefits.