3 Marines will face various charges in their hearing today in Kaneohe
Within two weeks of arriving at a new patrol base and being assigned to a new squad in southern Afghanistan, Marine Lance Cpl. Harry Lew fell asleep three times while performing guard duty, officials said.
From March 19 to April 2 — the day before Lew died — Patrol Base Gowragi was attacked twice by forces armed with AK-47 rifles and medium machine guns.
The Golf Company Marines with the Hawaii-based 2nd Battalion, 3rd Marine Regiment, had heard reports that the enemy was massing to attack or overrun PB Gowragi, which was newly established and being built into a bigger base in a known enemy area.
Lew, 21, was counseled and told he would receive nonjudicial punishment, officials said.
The fourth time Lew fell asleep while standing post, fellow Marines took matters into their own hands — harshly, according to an investigation into his suicide.
Three of the Hawaii Marines allegedly involved, a sergeant and two lance corporals, face charges at the Kaneohe Bay Marine Corps base today ranging from humiliating and demeaning Lew to dereliction of duty and assault.
The Article 32 hearing, similar to a civilian preliminary hearing, will result in a recommendation by an investigating officer as to what charges, if any, the three Marines should face at court-martial.
At 11:30 p.m. April 2, according to the investigation, a sleeping Lew was pulled by his helmet from his fighting position, berated in a voice loud enough to wake other Marines, and ordered to carry a filled sandbag and dig a new chest-deep position, the report indicates.
Several hours later, Lew was ordered to do pushups and crunches, an unidentified lance corporal would “stomp down” on Lew’s back and legs, sand from a sandbag was poured on his face, and Lew was kicked and punched in the back of his helmet, the investigation states.
At 3:43 a.m. April 3, while crouched in the fighting position he had just dug, the Santa Clara, Calif., man leaned over his M249 Squad Automatic Weapon, placed the muzzle in his mouth, and killed himself, the Marines say.
The actions taken by the Marines have been characterized as hazing, and the Corps said it “does not tolerate hazing of any kind,” but attorney Greg Rinckey, a former Army judge advocate general officer who has expertise in military cases, said the hazing accusations may be a tough sell for Marine actions in a combat zone.
Rinckey, a managing partner with the East Coast law firm Tully Rinckey PLLC, said he expects the defense to say the actions by the accused Marines were not hazing.
“I think the strategy at least from the defense perspective is going to be, ‘Hey, this kid was falling asleep. We needed to make sure that we were keeping him up,’” Rinckey said.
“If, while you are sleeping, your buddy is asleep while he’s supposed to be protecting you, that’s not a good situation, especially if the position can be overrun,” Rinckey added. “So I don’t think it’s as clear-cut as (the Marines) are making it.”
The Marines charged July 11 and the accusations are:
» Lance Cpl. Carlos Orozco III, 22, is charged with violation of a lawful order for wrongfully humiliating and demeaning Lew; dereliction for failing to supervise and ensure the welfare of the Marines under his care; cruelty and maltreatment for ordering Lew to do pushups, side planks and leg lifts with a sandbag, and pouring sand onto his face.
Orozco also is charged with assault for stomping on Lew’s back with his foot and kicking his head.
» Sgt. Benjamin E. Johns, 26, charged with humiliating and demeaning Lew, and dereliction for failing to supervise and ensure the welfare of the Marines under his care.
» Lance Cpl. Jacob D. Jacoby, 21, charged with violation of a lawful order for abusing, humiliating and demeaning Lew; and assault for striking Lew in the back with his foot, and kicking and striking Lew in the head.
Jacoby also is charged with communicating a threat to Lew that he was going to receive a beating.
The investigation doesn’t shed light on why Lew kept falling asleep — or why he reportedly killed himself.
The report said Lew, who enlisted in the Corps in 2009, “was known as a quiet and well-mannered Marine with a good sense of humor.”
He never behaved in a way that would lead others to believe he had the desire to kill himself, the investigation said. One Marine stated Lew was having problems at home and didn’t want to be in Afghanistan anymore, but the report didn’t specify the problems.
Lew was discovered after his death to have scrawled on his left forearm the message, “May hate me now, but in the long run this was the right choice I’m sorry my mom deserves the truth,” the Corps said.
The investigation said the circumstances “suggest he suffered from an undiagnosed mental disease or defect such as severe depression,” without offering any evidence of that.
A relative of Lew contacted Wednesday in California would not comment at length, but did say his parents and other relatives are expected to attend today’s Article 32 hearing.
In the past, the Marines have been stung by hazing accusations within the ranks, including video aired in 1997 by “Dateline NBC” and CNN showing Marines at Camp Lejeune, N.C., getting spiked paratrooper “jump wings” ground and punched into their bloody chests, and tales of Marines just out of boot camp being harassed.
The investigation into Lew’s death notes continuing efforts within the 2nd Battalion, 3rd Marines, to prevent hazing, and some past incidents involving the Hawaii unit.
The battalion’s logistics officer, a first lieutenant whose name is blacked out, as are most others in the report, said in February 2010 there was a battalion formation in response to a hazing incident.
In the spring or summer of that year, a brigadier general “denounced” a series of hazing incidents within the battalion, the lieutenant said.
In August of that year, a lieutenant colonel spoke about hazing again after another incident at the exercise Enhanced Mojave Viper 6-10.
Marine Corps officials in Hawaii said no explanation of the incidents would be provided because they are within the investigation, which may be introduced in the pending legal proceeding involving Lew’s death.
Rinckey, the defense attorney, said that in any military unit, “the unit’s going to take care of its problems on its own.”
Whether the three accused Marines’ actions crossed the threshold into hazing in a combat zone, “that’s the thin line where lawyers are going to disagree,” he said.
“It’s clearly an interesting case and one that all military practitioners are going to be looking at — especially because hazing is prevalent and the Corps is coming down on it,” Rinckey said.